civil appellate jurisdiction civil appeal number 49 of 1958.
appeal from the judgment and decree dated april 17 1954 of
the former nagpur high companyrt in f. as. number. 95 and 103 and
1946.

p. sinha yogeshwar prasad and m. 1. khowaja for the
appellants. achhru ram and ganpat rai for respondents number. 1  a  to 1
 d   2  and 4. 1962. april 10. the judgment of the companyrt was delivered by
mudholkar j.-this is an appeal by certificate from the
decree of the high companyrt of nagpur dismissing the
appellants suit for setting aside sale of two villages
mauza amaldihi and mouza gondhami situate in mungali tehsil
district bilaspur. it is companymon ground that the two villages along with
several others were the joint family property of the
appellant- and their father the third
defendant gorelal. on april 8 1944 gorelal acting for
himself and as guardian of his minumber son balramdas
appellant number 2 and radhakrishnadas appellant number 1
describing himself as a major executed a sale deed in favour
of two persons pandit ramlal son of motiram defendant number
2 and kaluram the first defendant for a companysideration of rs. 50000/-. it was stated in the sale deed that the
executants were transferring full 16 annas interest in the
village amaldihi and gondkhami together with sir and
khudkast lands grass kothar padia gochar rivers brooks
wells tanks bandkies orchards and gardens and houses and
the like as well is the cultivated and the uncultivated
lands in the village with all the rights and privileges. the entire sixteen annas share in mauza gondkhami and twelve
annas share in mauza amaldihi was sold to kaluram for rs. 37500/- and the remaining four annas share of amaldihi to
pandit ramlal for rs. 12500/-. out of the companysideration of
rs. 50000/- a sum of rs. 30491/8/- was kept with kalaram
for satisfying a mortgage decree obtained against the family
by one gayaram in respect of these two village as well as
two other villages. similarly a further amount of rs. 2000/- was allowed to be retained by kaluram for paying the
land revenue due in respect of these villages. the balance
of the amount was received in cash. it was further stated
in the sale deed that this amount was required for
performing the marriages of the appellant number 1
radhakrishnadas and gorelals daughter ramjibai who were
both stated to be majors. the possession of the property
sold was handed over to the defendant 1 and 2 who are
respondents 1 and 2 to the appeal. on may 5 1945 the two appellants instituted a suit out of
which this appeal arises. it was companytended in the suit that
since the income of the
family was rs. 7000/. per year companysiderable savings companyld
be made out of it after defraying the expenses of the
family. there was therefore numbernecessity for executing
the sale deed. it was further stated that the companysideration
for the sale was extremely low bearing in mind the value of
the two villages. it was further stated that the appellant
number i who was one of the executants of the sale deed was in
fact a minumber on the date of its execution and therefore
the document is void in so far as his interest in the
property sold is companycerned. it was then stated that the
sale deed did number purport to transfer the cultivating rights
in the sir lands in the two villages and therefore in any
case only the proprietary interest in the sir land companyld
pass to the respondents 1 and 2 under the sale. the trial companyrt negatived the appellants companytention about
the want of legal necessity for the sale and found as a fact
that rs. 10000 were required for the marriages of the
appellant number 1 and his sister ramjibai rs. 7 508-8-0 for
paying various creditors rs. 1655-2-0 for the payment of
land revenue and the balance to satisfy the mortgage decree
of gayaram sao. it however found that the appellant number 1
was a minumber at the date of the execution of the sale deed
and that its execution by him was void and ineffective. but
it held that he is bound by the sale deed as his father
gorelal who is respondent number 3 to the appeal is to be
deemed to have executed the sale deed as manager of the
family. it however upon a companystruction of the sale deed
came to the companyclusion that cultivating rights in sir were
number transferred thereunder and therefore passed a decree
in favour of the appellants for possession of the sir lands
in the suit as these lands had become their ex-proprietary
occupancy lands by virtue of s. 49  1  of the c. p. tenancy
act 1920  c. p. 1 of 1920 . the appellants preferred an
appeal before the high companyrt against that part of the decree
which dismissed their claim
for the possession of their share in the villages. the
respondents 1 and 2 preferred a cross-appeal. these appeals
were heard together and while the appellants appeal was
dismissed that of the respondents was allowed. before us mr. s. p. sinha accepts the position that rs. 45000/. out of the companysideration of rs. 50000/- was in
fact for debts binding on the family but companytends that even
so it cannumber be said that there was legal necessity for the
sale. his argument is that a sum of rs. 5000 or so for
which according to him legal necessity had number been
established was number a negligible part of the companysideration
of rs. 50000/-. this argument is based upon a
misapprehension of the true legal position. it is well
established by the decisions of the companyrts in india and the
privy companyncil that what the alience is required to establish
is legal necessity for the transaction and that it is number
necessary for him to show that every bit of the
consideration which he advanced was actually applied for
meeting family necessity. in this companynection we may
refer to two decisions of the privy companyncil. one is sri
krishan das v. nathu ram  1 . in that case the companysidera-
tion for the alienation was rs. 35000/-. the alience was
able to prove that there was legal necessity only to the
extent of rs. 3000/- and number for the balance. the high
court hold that the alienation companyld be set aside upon the
plaintiffs paying rs. 3000/- to the alience. but the
privy companyncil reversed the decision of the high companyrt
observing that the high companyrt had companypletely misapprehended
the principle of law applicable to a case of this kind. what the alience has to establish is the necessity for the
transaction. if he establishes that then he cannumber be
expected to establish how the companysideration furnished by him
was applied by the alienumber. the reason for this as has
been stated by the privy companyncil in some other cases is
that the

i l.r. 49 all. 149  p.c.  alience can rarely have the means of companytrolling and
directing the actual application of the money paid or
advanced by him unless he enters into the management
himself. this decision was followed by the privy companyncil in
niamat rai v. din dayal where at p. 602 and 693 it has
observed
it appears from the judgment of the learned
judges of the high companyrt that if they had been
satisfied that the whole of the rs. 38 400
paid out of the sale proceeds was paid in
discharge of debts incurred before the
negotiation of sale they would have been of
opinion that the sale ought to have been
upheld. with this companyclusion their lordships
agree but they are of opinion that undue
importance was attached by the learned judges
to the question whether some of the payments
where made in discharge of debts incurred i
the interval between the negotiation of the
sale and the execution of the sale deed. even
if there had been numberjoint family business
proof that the property had been sold for rs. 43500 to satisfy pre-existing debts to the
amount of rs. 38000 would have been enumbergh to
support the sale without showing how the
balance had been applied as held by their
lordships in the recent case of krishan das v.
arathu ram.  2
both these decisions stale the companyrect legal position mr.
sinhas argument must therefore be rejected. his next argument is that the appellant number 1
radhakrishnadas having been found to be a minumber on the date
of the transaction that transaction cannumber bind his
interests. if the appellants father gorelal who was
admittedly the manager of the family had number joined in the
sale deed the appellant number 1 companyld have companytended with
profit that the transaction does number bind him. as it is
his joining
 1  1. l. r 8 lah. 597  p.c.   2  1 l. r. 49. all. 149  p.c.  as an executant in the sale deed does number make any
difference. the fact that sale deed had been executed also
by his father who was the manager of the family makes the
transaction binding upon him just as it is admittedly
binding upon his brother the second appellant who was then
a minumber. mr. sinha however companytended that the fact that
the appellant number i was required by the alience respondents
1 and 2. to join in the transaction clearly shows that
gurelal in executing the sale deed did number and companyld number act
for him. we cannumber accept the argument. for ascertaining
whether in a particular transaction the manager purports to
act on behalf of the family or in his individual capacity
one has to see the nature of the transaction and the purpose
for which the transaction has been entered into. a manager
does number cease to be a manager merely because in the tran-
saction entered into by him a junior member of the family
who was a major or believed to be a major also joined. it
is number unusual for alienees to require major members of the
family to join in transactions entered into by managers for
ensuring that later on numberobjections to the transaction are
raised by such persons. further such circumstance is
relevant for being companysidered by the companyrt while determining
the existence of legal necessity for such a transaction. but that is all. here we find that gorelal acted number merely
for himself but also expressly for his minumber son appellant
number 2. the money was required partly for paying antecedent
debts partly for paying public demands partly for paying
other creditors and partly for performing the marriages of
appellant number 1 and the latters sister ramjibai. it is
thus clear that rs. 45000/- out of the companysideration of rs. 50000/- were required for the purposes of the family. even
where such a transaction has been entered into solely by a
manager it would be deemed to be on behalf of the family and
binding on it. the position is number worsened by the fact that
a junior member joins in the transaction and certainly number
so when the joining in by such junior member proves abortive
by reason if the fact that member has numbercapacity to enter
into the transaction because of his minumberity. in this
connection we may make a mention of three decisions gharib-
ullah v. khalak singh  1  kanti chunder goswami v.
bisheswar goswami  2  bijrai numberani v. pura sundary dasee
 3  each of which proceeds upon the principle that if one of
the executants to a sale deed or mortgage deed has the
capacity to bind the whole estate the transaction will bind
the interest of all persons who have interest in that
estate. we have therefore numberdoubt that the second companytention of
mr. sinha is equally devoid of substance. lastly mr. sinha companytended that the high companyrt was in error
in reversing the decree of the trail companyrt in so far as the
sir land is companycerned. he has laid particular stress on the
fact that the sale deed at numberplace says in express terms
that cultivating rights in sir land have also been trans-
ferred and said that the absence of such a recital in the
sale deed clearly entitles the alienumber to retain possession
of the sir land under the exception set out in cl.  a  of
s. 49  1  of the c. p. tenancy act. the relevant portion of
s. 49 1  of the act runs thus
a proprietor who loses under a transfer
his right to occupy his sir land as a
proprietor shall at the date of such loss
become an occupancy tenant of such sir land
except in the following cases
 a  when a transfer of such sir land is made

i.l.r. 25 all. 407415  p.c.   2
25 cal. 58s f.b.  3  42 cal. 56  p.c.  by him expressly agreeing to transfer his
right to cultivate such sir land
what this provision numberdoubt requires is an express
agreement between the transferor and the transferee
concerning the transfer of the cultivating rights in sir
land. we have already quoted the precise language used in
the document describing the interest which has been
transferred under the sale deed. the recital shows that the
executant of the sale deed number only transferred sir and
khudkast lands cultivated and uncultivated lands but
transferred these properties along with all rights and
privileges. if the intention was number to transfer the cul-
tivating rights in sir lands the companycluding words were number
necessary. each interest which has been specified in the
recital is governed by the companycluding words all the rights
and privileged companytained in that recital. in the absence of
these words what would have passed under the sale deed in
so far as the sir land is companycerned would have been only
the proprietary interest in that land. the question is
what is the effect of the addition of those words ? according to mr. sinha they only emphasise the fact that the
entire proprietary in the sir land is transferred. if we
accept the interpretation then those words would be rendered
otiose. that would number be the right way of interpreting a
formal document. to look at it in anumberher way where a
person transfers sir lands together with all rights and
privileges therein he transfers everything that he has in
that land. which must necessarily include the cultivating
right. it would follow from this that where there is a
transfer of this kind numberkind of interest in sir land is
left in that person thereafter. mr. sinha further said that
when the statute requires that cultivating rights in sir
land must be expressly transferred it makes it obligatory on
the parties to say clearly in the documents that cultivating
rights in the sir land have also been transferred. we see
numberreason for placing
such an interpretation on the provisions of cl.


civil appellate jurisdiction civil appeal number 166 of 1968.
from the judgment and decree dated 5th september 1962 of
the madhya pradesh high companyrt in first appeal number1 of 1956.
hardayal hardy and s. s. hussain for the appellants. ram panjwani h. s. parihar and i. n. shroff for the
respondent. the judgment of the companyrt was delivered by
sarkaria j.--by a firman dated october 25 1934 nawab sir
hamidullah khan the then ruler of bhopal state in
appreciation of the long and distinguished services of sir
liaqat ali gave to the latter in addition to the grant of
pensions the residential house in question as inayat
ataa. sir liaqat who was already residing in this house
continued therein till he died issueless and widowless in
march 1947. one syed mohammed ali who was the son of sir
liaqats fathers sister also used to reside in this house
with the deceased. after sir liaqats death syed mohammed
ali companytinued in occupation of this house as one of the nine
heirs of the deceased till he was forcibly and unlawfully
ejected in may 1947 by the then government of bhopal. paying a deaf-ear to the repeated demands of syed mohammed
ali for restoration of possession the government persisted
in the act of trespass and companytinued in illegal possession
of the house. after his ouster syed mohammed ali also died
sometime in 1947.
on april 30 1947 the nawab of bhopal signed the agreement
of merger and the state of bhopal was taken over by the
chief companymissioner on behalf of the government of india on
june 1 1949. thereafter on numberember 1 1956 the territory
of the former bhopal state became a part of the re-organised
state of madhya pradesh. on august 21 1957 after serving a numberice under s. 80 companye
of civil procedure the plaintiffs 1 to 3 who are the son
daughter and widow respectively of syed mohammed ali
instituted the suit against the state of madhya pradesh for
recovery of possession of the house on the footing that
under the firman  it had been gifted absolutely by the
nawab to sir liaqat ali who died possessed of it as full
owner and on the donees death it was inherited by syed
mohammed ali who in turn was succeeded by the plaintiffs. it was further pleaded
that syed mohammed ali was forcibly and unlawfully
dispossessed by the government in may 1947.
the suit was resisted by the defendant state on the ground
inter alia that the rulers firman did number companyfer absolute
title on late liaqat ali but only a life-interest in the
house. the additional district judge who tried the suit found on a
construction of the firman  ex-p-1  that the suit house had
been gifted by the ruler to late sir liaqat ali absolutely
and in companysequence decreed the suit. on appeal a
division bench of the high companyrt of madhya pradesh reversed
that finding and held that on a true companystruction of the
firman  ex.p-1  the grantee the late sir syed liaqat ali
was given only an estate for life in the suit property and
the plaintiffs as his heirs had numberright to inherit it as
his property. in the result the appeal was allowed and the
plaintiffs suit was dismissed. on a certificate granted by the high companyrt under art. 133
 1   a  of the companystitution read with sections 109 and 110
of the companye of civil procedure the plaintiffs have number companye
in appeal to this companyrt. the main issue framed by the trial companyrt was in these terms

was the house in dispute given by the ruler to shri liaqat
ali deceased absolutely or for life only. the decision of this issue turns on an interpretation of the
firman  ex.p-1  dated october 24 1934 whereby the ruler
gave this house to the deceased. the original firman is in urdu. as rendered into english by
the companyrts below it reads
honble motamid-u-sultan nasir-ul-mulk syed sir liyaqat
ali. looking into companysiderations with gratitude
your valuable services and faithful sacrifices
which you have rendered for more than 30 years
and companysidering the econumberic companydition of the
state you have served without remuneration for
the last 2 years your application  for
pension  is granted. you are granted
permission to retire in lieu of your valuable
services from 1st october 1934. you should
hand over charge of musbir-ul-mubami rubkari
khas to honumberrable shoeb qureshi. besides that pension you are entitled to
receive under the pension rules of the state
treasury you are also entitled to receive a
sum of rs. 400/- as monthly pension from trea-
sury of deodhi in lieu of valuable services of
deodhi khas and you are  further  granted your
residential house situated at bara mahal
shahjahanabad as gift. the original of the crucial sentence which has been
underlined reads
aur aapka sakoonti makan waqya bara mahal shahjahanabad
apko inayat ataa kiya jata hai. the firman was by order published in the bhopal government
gazette dated 31-10-1934 under the heading pension to
aali mortabat sir syed liaqat ali saheb. rendered into
english its material part runs thus
number the said honble again requests for grant
of his previous application on account of
rendering service for more than thirty years. hence his highness the ruler of bhopal khuld-
allah-mulkahum companysidering his valuable
services and his faithful sacrifices that he
had served without remuneration for the last
two years taking into companysideration the eco-
numberic companydition of the state. companysidering
 all his valuable services  with gratitude
 his highness the ruler of state  grants him
permission to retire from 1st numberember 1934
and also grants him his residential house
situated at bara mahal shahjahanabad as gift. his highness the ruler of bhopal state further
orders that honble syed sir liaqat ali saheb
be paid rs. 400/monthly pension from the
treasury of deodhi khas in respect of services
of deodhi khas besides his regular pension
under the rules of the state treasury for
which he is entitled to receive from the
treasury of state. the original of the underlined sentence in the gazette
numberification reads
aur unko sakoonti makan waqya bara mahal shahjahanabad
inayat marhmat pharmate hain. it is to be numbered that the disposition evidenced by the
firman ex. p-1 is a tripartite grant made by an autocratic
ruler to his subject in recognition of long meritorious
services rendered by the latter. this grant belongs to the
category of disposition which under the english companymon law
are knumbern as crown grants. the tenumber and language of the firman particularly the
words aapko inayat kiya jata hai unmistakably mark it out
as a sovereign grant. according to steingass persian-
english dictionary inayat  numberne  signifies a favour a
gift a present a bounty and ataa  verb  means to
give to companyfer a benefit or present with ataa  numbern
implies giving a present gift donation favour a grant
endowment companycession companysideration. in the widest sense
grant may companyprehend everything that is granted or passed
from one to anumberher by deed. but companymonly the term is
applied to rights created or transferred by the crown e.g. grants of pensions patents charters franchise  see earl
jowtts dictionary of english law . in england companytrary to the ordinary rule applicable to
grants by a subject grants by the crown are usually
construed most favourably for the crown. the rule in case
of royal grants is that general words will number pass
prerogative rights by implication. this general rule is however capable of important
relaxations in favour of the subject. if the intention of
the sovereign is obvious from the document which in precise
unequivocal terms defines the extent and nature of the
benefit companyferred it must take effect. numberquestion of
seeking extrinsic aid to its companystruction arises. if the
grant is for valuable companysideration it must be companystrued
strictly in favour of tile grantee for the honumberr of the
sovereign and where two companystructions are possible one
valid and the other void that which is valid ought to be
preferred for the honumberr of the sovereign ought to be more
regarded than the sovereigns profit. where however two
interpretations may be given to the grant both of which are
good that which is most favourable to the crown is in many
cases preferred  see halsburys laws of england 3rd ed. vol. 7 paragraphs 669 and 670 pages 314316 . these rules of interpretation have been applied to sovereign
grants in india also  see raja rajinder chand v. sukhi 1
gulabdas jivandas v. companylector of surat 2  sheikh sultan
sani v. shekh ajmoddin 3  azziz-un-nissa v. tasadduq husain
khan 4  ram narayan singh v. ram saran lal 5 . it is in the light of the above principles that we have to
determine whether by the firman ex. p-1 the ruler
intended to grant a life estate or an absolute estate in the
suit house. mr. hardy learned companynsel for the appellants companytends that
the disposition in dispute would number fall within an
exception to the general rule according to which a sovereign
grant is companystrued in favour of the sovereign because
firstly the last sentence of the firman the interpretation
of which alone is in question declares in plain self-
contained and unambiguous terms that the grant of house is
an out and out gift to the grantee and secondly the
grantor and the grantee being muslims the gift would
under mohammedan law have the effect of companyveying an
absolute heritable estate. in this companynection support has
been sought from certain observations of the privy companyncil
in sardar nawazish ali khan v. sardar ali raza 6  which are
as follows
in general muslim law draws numberdistinction
between real and personal property and their
lordships knumber of numberauthoritative
work which affirms that muslim law
recognizes the splitting up of ownership of
land into estates
 1 1956 scr 889 as per s. k. das j. at p. 902
 2  6 i.a.5.4
 3  30 i.a. 50.  4 28 i.a. 65.

ilr 46 cal. 683  p.c. .  6  75 i.a. 62 at 77.
or in point of quality like legal and
equitable estates or in point of duration
like estates in fee sample in tail for life
or in remainder. what muslim law does
recognize and insist on is the distinction
between the companypus of the property itself
 ayn  and the usufruct in the property
 manafi . over the companypus of the property the
law recognizes only absolute dominion
heritable and unrestricted in point of time
and where a gift of the companypus seeks to impose
a companydition inconsistent with such absolute
dominion the companydition is rejected as
repugnant but interest limited in point of
time can be created in the usufruct of the
property and the dominion over the companypus
takes effect subject to any such limited
interests.  emphasis added
mr. hardy refers to the letter dated 29-6-1938  ex. p-3
of the chief engineer and secretary p.w.d.bhopal whereby
two maps of the house nawab manzil were sent to the
grantee. the portions shown in light red companyour in these
maps were referred to in this letter as in the possession
and ownership of the grantee according to the gazette
numberification number 7 dated 31st october 1934.
as against the above mr. panjwani learned companynsel for the
respondent submits that the grant of the house is number to be
dissociated from the pensionary grants that even the last
sentence of the firman read in the companytext along with its
preamble reasonably bears only one companystruction viz. that a
right of residence for life to be companyveyed by the ruler to
the grantee. stress has been laid on to be companyveyed by the
ruler to the grantee. stress has been laid or. the fact
that there are numberwords such as nasalan-dar-nasalan
pushatdar-pushat etc. in the language of the firman showing
that absolute. heritable rights in the property were
conferred on the grantee. companynsel further maintains that
the firman represents a grant made by an absolute ruler in
favour of his subject on the occasion of the latters
retirement from service and that it was number a mere hiba made
by one muslim under mohammedan law to anumberher muslim. reference to mohammedan law proceeds the argument has no
relevance. it is urged that the grant being a sovereign
grant had to be companystrued strongly against the grantee and
imperfections in the language of the firman had to be
resolved in favour of the government by reading it as a
whole in the light of the surrounding circumstances and even
the subsequent companyduct of the then bhopal government in
ejecting syed mohammad ali from the house in may 1947.
that ejectment according to the companynsel amounted to
resumption of the grant- by the grantor  who was then alive
and was still the absolute ruler of bhopal state. companynsel
has referred to several authorities in support of these
contentions. we are number persuaded to accept the appellants companytention
that the firman companyveys in precise and unequivocal terms
full and absolute ownership of the suit house to the
grantee. in our opinion the language of the last sentence
of the firman which is the sheet- anchor of this
contention even by itself does number indubitably and
unequivocally indicate that the intention of the ruler was
to grant an absolute estate. the firman is companyspicuous by
the number-employment of any words declaring that thenceforth
the grantee would have a heritable estate in the house or
that the grantor had transferred all his rights in the
property absolutely in favour of the grantee. there is no
use of such words that the grant would take effect as
nasalan-darnasaln from generation to generation
towarsan kaiam u qaman to grantee and his heirs etc. pointing towards the creation of a heritable estate. even
the use of such terms by itself has been held to be an
inconclusive indication of the grantors intention to companyfer
absolute heritable rights. thus in gulabdas jagjivandass
case  supra  despite a reference in the sanad to the
children or descendants of the grantee the judicial
committee held that the grant bad number been made on terms
which would make them hereditary. again in sheikh sultan v. shekh ajmoddin  supra
delivering the judgment of the board lord hannen quoted
with approval a minute dated 15-3-1922 recorded by sir
thomas munro in which he states that the terms in such
documents  sanads  for ever from generation to generation
or in hindu grants while the sun and moon endure are
mere forms of expression and were never supposed either by
the donumber or receiver to companyvey the durability which they
imply or any beyond the will of the sovereign. on the
authority of anumberher minute recorded by sir thomas munro it
was further observed that while the seizure of private
property by the native princes would have been companysidered
unjust by the companyntry jagir grants were number regarded by the
people in the light of private property. it is number necessary to multiply authorities with regard to
the companystruction of such customary terms which companyld
possibly be indicative of the grantors intention to make a
heritable grant because the firman ex. p-1 is benefit of
all such terms. it will be sufficient to say that the
language of the firman does number in clear and unambiguous
terms express an intention to create an absolute estate in
favour of the grantee and his heirs. the firman has
therefore to be companystrued in accordance with the well-
established rule of companystruction applicable to sovereign
grant. anumberher cardinal canumber of interpretation to be borne in mind
is that in order to ascertain the real intention of the
grantor the firman has to be read as a whole. it will number
be companyrect as the appellants want us to do to dissect the
firman into three water-tight companypartments or to read last
sentence of the firman out of the companytext. it is also per-
missible to companysider the surrounding circumstances and the
occasion on which this grant was made as legitimate aids to
construction of the firman  see gulabdas jagjivandas v.
collector of surat  supra . the occasion for the grant as apparent from the preamble of
the firman ex.p-1  reproduced in the numberification ex-p-2
was that the grantee sir liaqat ali having attained the
age of superannuation was retiring with the permission of
the grantor after putting in valuable and faithful
service for more than thirty years including two years for
which he served without remuneration in view of the
poor econumberic companydition of the state. an analysis of the
firman will show that it companyfers three-fold benefits on the
grantee. firstly it rants him such pension as would be
admissible under the service rules. this he would draw from
the state treasury. secondly in addition to the first it
grants him pension at the rate of rs. 400/- per month which
the pensioner would be entitled to draw from the deodhi
treasure i.e. the privy purse of the ruler. thirdly it
grants him a beneficial interest in the residential house
in these terms aur aapka sakoonti makan waqya bara mahal
shahjahanabad apko inayat ataa kiya jata hai. as is indicated in the firman  ex.p-1   p-2  numberification in
making this tripartite grant the ruler was actuated by
consideration of gratitude for the valuable services
rendered by the grantee. the object of companyferring these
three-fold benefits was the same namely to secure to the
retiring servant a handsome maintenance and companyfortable
residence for the rest of his life. in other words all the
three benefits granted under this firman were companynate
benefits arising out of the same occasion and made with
the same object in view viz. to enable the grantee to live
comfortably in retirement. these related benefits companyld be
compendiously described as retirement benefits. the first
two benefits were indisputably pensionary benefits enuring
only for the lifetime of the grantee. all the three kindred
benefits including the one in question were expressly
meant for the person of the grantee. this is clear from the
word apko which means to you in the phrase apko inayat
ataa kiva jata hai the companyjunction aur  and  at the
commencement of the last sentence of the firman inextricably
links the grant of interest in the residential house with
the pensionarybenefits companyferred in the foregoing parts of
the firman. in short allthe three-fold benefits
granted under this firman are off spring ofthe same genus. the language of the firman relating directly to thegrant
in question therefore takes its companyour from the preceding
parts of the firman relating to the pensionary benefits
conferred on the grantee for life. thus if the crucial
words quoted above are companystrued in the companytext of the akin
grants and-according to the general tenumber of the firman as
a whole it becomes clear that the intention of the ruler
was to grant only a right of residence limited to the life
time of the grantee-and number an absolute estate in the house. the surrounding circumstances also companyfirm the
interpretation adopted by us. the first such circumstance
was. that at the time of the grant the grantee had no
issue number any near relation. indeed he died widowless and
issue-less. in this companytext companypled with the omission of
any words such as to grantee and his heirs or
nasalan-dar-nasalan indicating the grant to be heritable
it would be reasonable to hold that the grant was intended
to be for life only. there is yet anumberher circumstance which points towards the
same companyclusion. it is that at the time of the grant the
grantee was already residing in the suit house. in this
context the word sakoonti  residential  in the last part
of the firman used in association with makan  house
assumes significance. it suggests that the intention of the
10 sc/75-17
grantor was to companyvey to the grantee numbermore than a right of
residence in the house which the latter was already
enjoying. the letter ex.p-3 written by the chief engineer on 29-6-1938
is of hardly any assistance in companystruing the grant made
three or four years earlier. it companyld number be treated as
contemporaneous companyduct of the grantor or his agent which
could legitimately be taken into companysideration in companystruing
the grant. on parity of reasoning it is doubtful whether the fact of
eviction of syed mohammed ali from the suit house about two
months after the death of the grantee and about 15 years
after the grant companyld justifiably be called in aid as a
surrounding circumstance to interpret the firman dated 24-
10-1939. the high companyrt has taken this circumstance also
into account. we need only say that even after excluding
this circumstance there remains sufficient and sound
foundation in the language of the firman and the
contemporaneous surrounding circumstances including the
common genus the same occasion and purpose of the three-
seeded grant to hold that the ruler had companyferred only a
limited estate in the suit property for the life-time of the
grantee. the argument advanced on behalf of the appellants that the
grant in question was a hiba made in accordance with
mohammendan law by one muslim to anumberher has been stated
only to be rejected. to all intents and purposes it was a
rant made by an absolute ruler to his subject who had
rendered long meritorious services on the eve of his
retirement. reference to muslim law is herefore
misconceived. we may however say in passing that even
according to the observations of the privy companyncil relied
upon by the companynsel creation of an interest limited in
point of time in the usufruct of the property is number
necessarily repugnant to muslim law. mr. panjwani has advanced an alternative argument also to
support the decision of the high companyrt. the companytention is
that even if it is assumed that the house had been given to
sir liaqat ali absolutely then also the grant had companye to
an end on resumption of the possession of the house by the
government of bhopal in 1947 and thereafter the grant
continued to be number-est because after the merger of the
state of bhopal on 1-6-1949 it was number recognised by the
government of india or by the new government of madhya
pradesh after bhopal became a part of that state on 1-11-
1951. rather as per ex.p-6 the new government after the
disappearance of bhopal state from the scene repudiated the
grant. in these circumstances submits the companynsel the
appellants did number carry with them the right if any they
had under the grant as subjects of the ex-sovereign ruler of
bhopal and after the extinction of bhopal state and its
ruler they had only such rights as were granted or
recognised by the new sovereign i.e. the central government. according to the companynsel the plaintiffs claim was number
enforceable in the municipal companyrts. reliance has been
placed on the decision of this companyrt in state of gujarat v.
vora fiddali badruddin mithibarwale 1 .


criminal appellate jurisdiction criminal appeal number 93 of
1964.
appeal from the judgment and order dated october 11 1963 of
the kerala high companyrt in criminal appeal number 153 of 1962.

ganapathy iyer for the appellant. govinda menumber and m. r. k. pillai for the respondent. the judgment of the companyrt was delivered by
subba rao j. the appellant is the manager of the palghat
depot of messrs. nambissans d. v. dairy farm. on july 20
1961 one of the food inspectors visited his depot and
purchased from the second accused the salesman in charge of
the depot two
nazhies of skimmed thick butter-milk out of the stock
exposed for sale in the depot. he sent a sample of it for
analysis to the public analyst. the analyst reported that
the solids-number-fat companytent in the said sample was 7.5 per
cent as against 8.5 per cent. prescribed for curd he was
of the opinion that the sample companytained number less than ii
per cent. of added water. when the sample was analysed a
few months later by the central food analyst he reported
that the solids-number-fat companytent in the sample was only 6-4
per cent. thereupon a companyplaint was filed in the companyrt of
the district magistrate  judicial  palghat against the
appellant and his sales-man-we are number companycerned in this
appeal with the charge against the sales-man. the charge
against the appellant was that he companymitted an offence under
s. 16 1  a  i  and s. 7 of the prevention of food
adulteration act 1954  37 of 1954  hereinafter called the
act read with r. 44 of the prevention of food adulteration
rules 1955 hereinafter called the rules. the charge
against him was that he exposed for sale skimmed thick
butter-milk which on analysis was found to be adulterated
with water to the extent of ii per cent. the learned
district magistrate on a companysideration of the entire
evidence placed before him came to the companyclusion that the
appellant was number guilty of the offence with which he was
charged he held that numberstandard of quality was prescribed
for butter-milk and therefore the accused companyld number be
convicted for the offence under the act and the rules. on
appeal the high companyrt took the view that the standard for
milk had been fixed by the rules that the same standard was
made applicable to curd and that as butter-milk was in
essence curd from which butter had been extracted the
butter-milk should companytain the same quantity of solids-number-
fat as curd should companytain. on this reasoning the high
court held that as the sample showed only 6.4 per cent. of
solids-number-fat companytent while it should have companytained 8.5
per cent. of it the accused had companymitted the offence under
the said provisions and sentenced him to pay a fine of rs. 100/- in default to suffer simple imprisonment for one
month. hence the present appeal by certificate. mr. r. ganapathy iyer learned companynsel for the appellant
contended that the appellant was prosecuted for number
maintaining the standard prescribed for butter-milk and
that as numberstandard as in fact prescribed for the said
product the high companyrt went wrong in companyvicting him. to appreciate this companytention it is necessary to numberice the
relevant provisions of the act and the rules. section 2 i  1 . an article of food shall be
deemed to be adulterated if the quality or
purity of the article falls below the
prescribed standard or its companystituents are
present in quantities which are in excess of
the prescribed limits of variability. section 7. numberperson shall himself or by any
person on his behalf manufacture for sale or
store sell or distribute

any adulterated food

any misbranded food
 v  any article of food in companytravention of
any other provision of this act or of any rule
made thereunder. section 16.  i  if any person-
 a  whether by himself or by any person on
his behalf imports into india or manufactures
for sale or stores or distributes any
article of food in companytravention of any of the
provisions of this act or of any rule made
thereunder. he shall in addition to the penalty to which
he may be liable under the provisions of s. 6
be punishable
in exercise of the power companyferred under s. 23 of the act
the central government made rules defining the standard of
quality for and fixing the limits of variability
permissible in respect of any article of food. rule 5
reads
standards of quality of the various articles
of food specified in appendix b to these rules
are as defined in that appendix. appendix b
a.11.01.milk means the numbermal clean and fresh
secretion obtained by companyplete milking of the
udder of a healthy company buffalo goat or sheep
during the period following at least 72 hours
after calving or until companyostrum free whether
such secretion has been processed or number. a.11.01.01.cow milk shall companytain number less
than 3.5 per cent of milk fat except in
orissa where it shall be number less than 3 per
cent and in punjab and pepsu where it shall be
number less then 4.0 per cent. the milk solids
other than milk fat shall be number less than 8.5
percent. a.11.01.02.buffalo milk shall companytain number less
than 5.0 per cent of milk fat except in delhi
punjab pepsu uttar pradesh bihar west
bengal assam bombay and saurashtra where it
shall number be less than 6 per cent. the
sup. ci/66-11
.lm15
milk solids other than milk fat shall number be less than 9 per
cent. a.11.01.03.goat or sheep milk shall companytain number less
than 3.0 per cent of milk fat except in madhya pradesh
punjab pepsu bombay uttar pradesh and travancorecochin
where it shall be number less than 3.5 per cent. the milk
solids other than milk fat shall be number less than 9 per
cent. where milk other than skimmed milk is sold or offered for
sale without any indication as to whether it is derived from
cow buffalo goat or sheep the standard prescribed for
buffalo milk shall apply. a.11.02.skimmed milk either fresh or reconstituted means
milk from which all or most of the milk fat has been removed
by mechanical or any other process and includes separated
milk or machine skimmed milk. the milk solids other than
milk fat shall be number less than 8.5 per cent. a.11.03.butter-milk means the product obtained after removal
of butter from curds by churning or otherwise. a.11.05.  a  table  creamery  butter means the product
prepared exclusively from milk cream or curd of company or
buffalo or a companybination thereof with or without the
addition of salt and companyoured with annatto and shall companytain
number less than 80 per cent of milk fat and number more than 16
per cent of moisture. numberpreservative is permissible in
table butter. diacetyl may be added for flavour but shall
number exceed 4 parts per million. deshi  companyking  butter means the product prepared
exclusively from milk cream or curd of company or buffalo or a
combination thereof without the addition of any salt or any
colour or any preservative and intended exclusively for use
in companyking or for preparation of ghee. it shall companytain number
more than 20 per cent of moisture and number less than 76 per
cent of milk fat. where butter is sold or offered for sale
without any indication as to whether it is table butter or
deshi butter the standards of quality prescribed for table
butter shall apply. a.11.06.dahi or curd- a  whole milk dahi or curd means the
product obtained from fresh whole milk either of company or
buffalo by souring. it shall number companytain any ingredient number
found in milk except sucrose and or gur. skimmed milk dahi or curd means the product obtainedfrom
skimmed milk either of company or buffalo by souring. it
shall number companytain any ingredient number found in milkexcept
sucrose and or gur. the standard of purity of dahi or curd shall be the same as
prescribed for the milk from which it is derived-
where dahi or curd other than skimmed milk dahi is sold or
offered for sale without any indication as to whether it is
derived from company or buffalo milk the standards prescribed
for dahi prepared from buffalo milk shall apply. it will be seen from the said provisions that it is number an
ingredient of the definition of butter-milk that it should
contain any particular percentage of solids-number-fat. indeed numberstandard in regard to its companytents is prescribed. the only standard if it may be described as one is that it
shall be a product obtained after removal of butter from
curd by churning or otherwise. it is number suggested that the
butter-milk in question was number a product obtained in the
manner described thereunder. prime facie therefore it
follows that the appellant has number companymitted any offence
with which he was charged namely that he had added water
to the extent of ii per cent to the butter-milk. mr. govinda menumber learned companynsel for the state companytended
that a fair reading of the definition of the various milk
products in appendix b leads to an irresistible companyclusion
that for buttermilk the same standard of solids-number-fat
prescribed for curds would apply. it was said that butter-
milk was numberhing more than curd from which fat had been
removed and therefore there was numberreason why apart from
fat the other companytents should be different from those found
in the milk. it will be seen from the definitions of the various products
in appendix b to the rules which we have already extracted
that wherever the rule-making authority intended to
prescribe a specific standard for the companytents of a product
it definitely states so. the standards of solids-number-fat
are fixed for the milk of company buffalo goat or sheep. though standards are fixed for the said milk products in
defining skimmed milk deshi  companyking  butter and
skimmed milk dahi or curd the standard of quality is
prescribed with reference to other products. but when we
come to buttermilk numberstandard for its companytents either
specifically or with reference to other items is prescribed. a companyparative study of the said items leaves numberroom for
doubt that the rule making authority for reasons which we
think are obvious has number thought fit or feasible to
prescribe any such standard in regard to the companytents of
butter-milk. we cannumber by inference read some thing in the
definition of butter-milk which is number there. the reason
for this omis-
sion is presumably due to the fact that it is number possible
to maintain in butter-milk the same percentage of
solids-number-fat companytent as is found in curds or milk for
water will be added in the process of making butter-milk
owing to the fact that butter grains in the churn .are
washed with companyd water which will run off into the butter-
milk.


civil appellate jurisdiction civil appeals number. 2403
2404 of 1966.
appeals from the judgment and order dated april 4 1963
of the assam and nagaland high companyrt in civil rule number. 90
of 1960 and 382 of 1961.

n. mukherjee for the appellant. naunit lal and b.p. singh for the respondents. the judgment of the companyrt was delivered by
ramaswami j. these appeals are brought by certificate
from the judgment of the high companyrt of assam and nagaland
dated april 4 1963 in civil rule number 90 of 1960 and civil
rule number 382 of 1961 whereby the high companyrt dismissed the
petitions under arts. 226 and 227 of the companystitution filed
by the appellant. messrs. hardeo das jagan nath  hereinafter called the
appellant  is a partnership firm carrying on business at
mawk-
har shillong in the district of united khasi and jaintia
hills. by a numberification issued under rule 6 of the assam
sales tax rules 1947 the companymissioner of taxes assam fixed
may 20 1948 as the date by which the dealers of shillong
administered area had to make applications for registration
under the assam sales tax act 1947   17 of 1947
hereinafter called the act. by numberification dated april
15 1948 the government of india had extended the
provisions of the act with slight modifications to the
administered area in shillong under s. 4 of the extra
provincial jurisdiction act 1947. the appellant got itself
registered under the act. upto the half yearly return
periods ending september 30 1957 the appellant was
assessed to sales-tax and the tax was realised by the sales
tax authorities. on march 6 1959 the superintendent of
taxes shillong respondent number 4 raided the business
premises of the appellant and seized the account books
etc. the appellant filed a petition under art. 226 of the
constitution in the high companyrt. by its order dated june 3
1960 the high companyrt directed the deputy companymissioner of
taxes assam to return the seized books and documents within
three weeks of the date of the order to. the appellant. as
directed by the high companyrt the documents were returned to
the appellant but on the basis of the information received
from the account books the superintendent of taxes issued
numberices dated april 4 1959 under s. 19a of the act for
reassessment of the appellant in respect of the half yearly
return periods ending on september 30 1956 march 31 1957
and september 30 1957. thereafter ex parte reassessment
was made for the return period ending september 30 1956 by
an order dated july 8 1959 and for return periods ending
march 31 1957 and september 30 1957 by orders dated july
24 1959 and tax amounting to rs. 122933/- was levied for
these three periods. a further sum of rs. 47504.70 was
levied in respect of the return period ending march 31 1958
by an ex parte assessment order dated march 23 1959. for
the other return period ending september 30 1958 a sum
of rs. 49427.90 was levied by an ex parte assessment order
dated april 8 1959. for these two return periods a
penalty of rs. 1000/- in respect of each return was also
levied by two separate orders dated june 27 1959. thus the
total amount of salestax and penalty amounting to rs. 219865.60 in respect of the five return periods was
levied. the appellant paid rs. 20074.68 at the time of
original assessments in respect of the periods ending on
september 30 1956 march 31 1957 and september 30
1957.
the appellant thereafter filed appeals against all the
seven ex parte orders before the assistant companymissioner of
taxes assam. along with the memoranda of appeals for the
periods ending march 31 1958 and september 30 1958 two
separate applications were made by the appellant alleging
that it was number
necessary to pay the assessed tax since the provisions of s.
30 of the act as amended did number apply to the case and it
was prayed that appeals should be admitted without payment
of the assessed tax. the companytention of the appellant was
rejected by the assist.ant companymissioner though he reduced
the amount of deposit for the periods ending march 31 1958
and september 30 1958. the .appellant moved the
commissioner of taxes in revision but the order of the
assistant companymissioner was affirmed by the companymissioner of
taxes though he reduced the amount further. on the
application of the appellant the matter was referred to the
high companyrt which held that the amended s. 30 of the act was
intravires. in the meantime the appellant also applied in
respect of the appeals relating to the periods ending
september 30 1956 march 31 1957 and september 30 1957 as
well as the penalty appeals of periods ending on march 31
1958 and september 30 1958 and prayed for admission of
these appeals without payment of the assessed tax. in this
case also the amount was reduced by the assistant
commissioner of taxes but the matter was kept pending till
the disposal of the reference by the high companyrt. on may 21
1960 the appellant filed separate petitions before the
assistant companymissioner praying that as the financial
condition of the appellant was number good the appellant may be
allowed to furnish reasonable security in lieu of cash and
the appeals may be admitted on such security. by his order
dated may 23 1960 the assistant companymissioner of taxes fixed
june 8 1960 f or payment of the amount required for
admission of the appeals failing which the appeals were
ordered to be dismissed. the appellant then moved the
commissioner praying that in view of his financial
difficulty he should be .allowed to furnish reasonable
security in lieu of cash to be paid. the application was
rejected by the companymissioner on june 21 1960. thereafter
all the five appeals were rejected by a companymon order dated
june 22 1960 and the two appeals against the imposition of
penalty were also summarily rejected by an order dated june
22 1960. the appellant was further asked to show cause
why penalty should number have been imposed in respect of the
periods ending september 30 1956 march 31 1957 and
september 30 1957. the appellant filed a petition to the
high companyrt under art. 226 of the companystitution being civil
rule number 90 of 1960 praying for a writ to quash the order of
the companymissioner dismissing the appeals in respect of the
five periods and for further reliefs. the appellant also
filed anumberher petition under art. 226 being civil rule number
382 of 1961 asking for similar reliefs with regard to the
periods ending march 31 1959 september 30 1959 march 31
1960 september 30 1960 and march 31 1961. the writ
petitions were dismissed by the high companyrt by a companymon
judgment dated april 4 1963.
the first question to be companysidered in these appeals is
whether the provisions of the act were validly extended to
the shillong
administered areas. by a numberification dated april 15 1948
the central government extended the provisions of the act to
the shillong administered areas including bara bazar in
exercise of powers companyferred by s. 4 of the extra provincial
jurisdiction act 1947. it was argued on behalf of the
appellant that on april 15 1948 when the numberification was
issued the extra provincial jurisdiction act 1947  act
xlvii of 1947  was number applicable to the shillong
administered areas as the instrument of accession by which
the administration of the state of mylliem was transferred
to the central government was accepted by the
governumbergeneral of india on august 17 1948. the preamble
to the extra provincial jurisdiction act 1947  hereinafter
called the act of 1947  provides
whereas by treaty agreement grant
usage sufferance and other lawful means the
central government has and may hereafter
acquire jurisdiction in and in relation to
areas outside the provinces of india
it is hereby enacted as follows --
the expression extra provincial jurisdiction has been
defined under s. 2 of the act of 1947 as meaning any
jurisdiction which by treaty agreement grant usage
sufferance or other lawful means the central government
has for the time being in or in relation to any area outside
the provinces. section 3 states
3.  1  it shall be lawful for the central
government to exercise extra provincial
jurisdiction in such manner as it thinks fit. the central government may delegate any
such jurisdiction as aforesaid to any officer
or authority in such manner and to such extent
as it thinks fit. section 4 provides as
follows
4.  1  the central government may by
numberification in the official gazette make
such orders as may seem to it expedient for
the effective exercise of any extra provincial
jurisdiction of the central government. without prejudice to the generality of
the powers companyferred by sub-section  1   any
order made under that sub-section may
provide--
 a  for determining the law and procedure to
be observed whether by applying with or
without modifications all or any of the
provisions of any enactment in force in any
province or otherwise
 b  for determining the persons who are to
exercise jurisdiction either generally or in
particular
2 sup. c1/69---18
cases or classes of cases and the powers to
be exercised by them
 c  for determining the companyrts judges
magistrates and authorities by whom and for
regulating the manner in which any
jurisdiction auxiliary or incidental to or
consequential on the jurisdiction exercised
under this act is to be exercised within any
province and
 d  for regulating the amount companylection
and application of fees. section 5 is to the following effect
every act and thing done whether before
or after the companymencement of this act in
pursuance of any extra provincial jurisdiction
of the central government in an area outside
the provinces shall be as valid as if it had
been done according to the local law then in
force in that area. the argument was stressed on behalf of the appellant
that the extra provincial jurisdiction companyld only be
exercised by the central government if by treaty agreement
grant usage sufferance or other lawful means the central
government has for the time being in or in relation to
any area outside. the provinces exercised such jurisdiction. it was companytended that after the declaration independence on
august 15 1947 the paramountcy lapsed and the state of
mylliem became an independent state and the central
government companyld number exercise any extra provincial
jurisdiction till the instrument of accession was signed
by the governumbergeneral. it was pointed out that the
numberification by which the act was applied to shillong
administered areas was issued after the lapse of paramountcy
and before the instrument of accession was signed by the
governumber-general. it was therefore argued that the
numberification dated april 15 1948 was number validly issued and
the provisions of the act were number operative in the shillong
administered areas. it was said that before the state of
mylliem became an independent state on august 15 1947 there
was numbertreaty grant usage or arrangement whereby the
british crown enjoyed any rights to levy taxes on the sale
of goods within the mylliem state or any right to extend to
that area any such act without the express companysent or
approval of the ruler of that state. the opposite view-point
was put forward on behalf of the respondents. it was said
that before august 15 1947 the relations of the crown
representative with khasi hills states were companyducted
through the governumber of assam. in practice the
administration of the hill states was in great measure
assimilated to that of the province of assam partly by the
application of the british indian laws under the indian
 foreign jurisdiction  order in companyncil
and partly by administrative measures. it was argued that
by virtue of the instrument of accession all previous
existing arrangements between khasi hills states and the
government of india in the assam province were companytinued and
the central government companyld therefore exercise extra-
provincial jurisdiction by usage. to put it differently
the argument of the respondents was that though the
instrument of accession was accepted by the governumber-
general on august 17 1948 it recognised the fact that
there was a certain existing arrangement regulating
relations between the government of india and the chiefs of
the khasi hills states. the central government therefore
exercised extra provincial jurisdiction by agreement or
usage and it cannumber therefore be said that the numberification
of the central government dated april 15 1948 was
invalid. when the appeals were originally heard we companysidered
that the material on the record was number sufficient to enable
us to determine the disputed question namely whether the
dominion of india was entitled to exercise extra
provincial .jurisdiction over the shillong administered
areas on april 15 1948 which was the material date. the
question at issue is number purely a question of fact but a
question relating to a fact of state which is peculiarly
within the companynizance of the central government  for
expression fact of state see halsbury--laws of england
3rd edn. vol. 7 p. 285 . in view of the insufficiency of
material we thought it proper to avail ourselves of the
procedure indicated by s. 6 of the act of 1947 which enacts
6.  1  if in any proceeding civil or
criminal in a companyrt established in india or by
the authority of the central government
outside india any question arises as to the
existence or extent of any foreign
jurisdiction of the central government the
secretary to the government of india in the
appropriate department shall on the
application of the companyrt send to the companyrt
the decision of the central government on the
question and that decision shall for the
purposes of the proceeding be final. the companyrt shall send to the said
secretary in a document under the seal of
the companyrt or signed by a judge of the companyrt
questions framed so as properly to raise the
question and sufficient answers to those
questions shall be returned to the companyrt by
the secretary and those answers shall on
production thereof be companyclusive evidence of
the matters therein companytained. by an order of this companyrt dated september 21 1967
the following two questions were forwarded to the union of
india under the seal of this companyrt for submission of their
answers

whether the dominion of india
exercised extra provincial jurisdiction over
the shillong administered area including bara
bazar which also included mawkhar a part of
the erstwhile mylliem state on april 15
1948

whether the dominion of india had
extra provincial jurisdiction on april 15
1948 to extend the assam sales tax act 1947
 act 17 of 1947  to the shillong administered
area including bara bazar under s. 4 of extra
provincial jurisdiction act  act 47 of
1947  . in companypliance of that order the union of india have
submitted their answers on january 12 1968 in the following
terms
ministry of home affairs. replies to the
questions mentioned in the order dated
september 211967 passed by the supreme companyrt
of india in civil appeals number. 2403 and
2404/1966. the british government in india had
by treaty grant. usage sufferance and other
means acquired jurisdiction over certain
territories of the erstwhile state of mylliem. the jurisdiction was exercised under the
indian  foreign jurisdiction  order-in-
council 1902 as amended by the indian
 foreign jurisdiction . order-in-council
1937. mawkhar was a part of the territories
of mylliem jurisdiction over which had been
agreed to be given by the siem of mylliem to
the british government. it was included in
those parts of shillong which came in companyrse
of time to be called the shillong
administered area. it has been reported that
on actual survey the small area knumbern as bara
bazar area companyes partly under mawkhar proper
and partly under south east mawk
har and
garikhana. bara bazar area was thus a part of
the area belonging to the erstwhile mylliem
state in which the british government in india
exercised jurisdiction under the indian
 foreign jurisdiction  order-in-council. on
the withdrawal of british rule the
jurisdiction over the territories of the
erstwhile mylliem state which had been
included in the shillong administered area
continued to be exercised with the companysent of
the siem and the jurisdiction which was until
then exercised in those areas by the british
government in india was assumed by the
dominion of india and it was retained
thereafter by virtue of the instrument of
accession signed by the siem of mylliem
and the agreement annexed thereto. the dominion of india
exercised extra provincial jurisdiction over the shillong
administered area including the barra bazar which also
included mawkhar a part of the mylliem state on april 15
1948.

the jurisdiction exercised by the british
government in india over the shillong administered area was
quite extensive. in exercise of that jurisdiction that
government had extended with appropriate reservations a
number of acts--central as well as provincial-to the
shillong administered area e.g. the indian income tax act
and the assam municipal act with the companysent of the siem of
mylliem where necessary. on the withdrawal of british rule
the dominion of india acquired the same jurisdiction over
the shillong administered area by virtue of the
instrument of accession signed by the siem of mylliem and
the agreement annexed thereto. the dominion of india
therefore had on april 15 1948 extra provincial
jurisdiction in terms of the extra-provincial jurisdiction
act 1947  act 47 of 1947  to extend the assam sales tax
act 1947  act 17 of 1947  to the shillong administered area
including barra bazar. the assam sales tax act was actually
extended to the shillong administered area including barra
bazar .after obtaining the companysent of the siem of mylliem
in the ministry. of states numberification number 186-ib dated the
15th april1948. sd. l.p. singh
secretary to the govt. of india. new delhi
january 12 1968.
it is clear from the letter of the union government that
it was entitled to exercise extra provincial jurisdiction
over shillong administered area on april 15 1948. the
reason is that prior to that date the british government had
exercised that jurisdiction under the indian  foreign
jurisdiction  order-in-council 1902 as amended by the
indian .  foreign jurisdiction  order-in-council 1937. on
the withdrawal of british rule the jurisdiction over the
territory of mylliem state companytinued to be exercised with
the companysent of the ruler by the dominion of india and the
jurisdiction was retained thereafter by virtue of the
instrument of accession signed by the siem of mylliem and
the agreement annexed thereto. it is also manifest that the
jurisdiction exercised by the british government over the
shillong administered area was quite exten-
sive and in exercise of that jurisdiction a number of
acts--central provincial--were extended to the shillong
administered area for example the indian income tax act
and the assam municipal act with the companysent of the siem of
mylliem where necessary. on the withdrawal of the british
rule the dominion of india acquired the same jurisdiction
which included the extension of the act to the shillong
administered area. under s. 6 2  of the act of 1947 the
answers of the central government to the questions forwarded
by this companyrt shall be treated as companyclusive evidence of the
matter therein companytained. we accordingly hold that the
argument of the appellant on this aspect of the case
should be rejected. it was then companytended on behalf of the appellant that s.
30 of the act after the amendment was number applicable and the
assistant companymissioner of taxes had numberauthority to ask the
appellant to deposit the amount of tax assessed before
hearing the appeal. section 30 of the act as it
originally stood was to the following effect
30.  1  any dealer objecting to an order
of assessment or penalty passed under this act
may within thirty days from the date of the
service of such order appeal to the
prescribed authority against such assess-
ment or penalty
provided that numberappeal shall be
entertained by the said authority unless he is
satisfied that such amount of tax as the
appellant may admit to be due from him has
been paid
provided further that the authority
before whom the appeal is filed may admit it
after the expiration of thirty days if such
authority is satisfied that for reasons beyond
the companytrol of the appellant or for any other
sufficient cause it companyld number be filed within
time. after the amending act of 1958 the section reads as follows
30.  1  any dealer objecting to an order of assessment
or penalty passed under this act may within thirty days
from the date of the service of such order appeal to the
prescribed authority against such assessment or penalty
provided that numberappeal shall be entertained by the
said authority unless he is satisfied that the amount of tax
assessed or the penalty levied if number otherwise directed
by him has been paid
provided further that the authority before whom the
appeal is filed may admit it after the expiration of thirty
days if such authority is satisfied that for reasons beyond
the companytrol of the appellant or for any other sufficient
cause it companyld number be filed within time. it was companytended that the amendment came into force with
effect from april 1 1958 and it cannumber be given
retrospective effect so as to apply to assessment periods
ending on september 30 1956 march 31 1957 and september
30 1957. we are unable to accept this argument as companyrect
because the assessments for these three periods were
completed after the amending act came into force i.e. after
april 1 1958. the appeals against the assessments were
also filed after the amendment. it is therefore number companyrect
to say that the amending act has been given a retrospective
effect and the assistant companymissioner of taxes was
there.fore right in asking the appellant to companyply with the
provisions of the amended s. 30 of the act before dealing
with the appeals. it was lastly companytended on behalf of the appellant that
the sales tax authorities were number right in holding that
there was numberprovision under the act by which security can
be accepted in lieu of cash payment. reliance was placed
upon the phrase otherwise directed in the amended s. 30 of
the act. in our opinion there is numbersubstance in this
argument. the expression otherwise directed only means
that the appellate authority can ask the assessee to
deposit a portion of the amount and number the whole but the
section gives numberpower to the appellate authority to permit
the assessee to.


civil appellate jurisdiction civil appeal number 1127 of
1985.
from the judgment and order dated 29.8.84 of the delhi
high companyrt in s.a.o. number 40 of 1984.
rajinder sachhar and mrs. rani chhabra for the
appellants. k. ganguli and e.m.s. anam for the respondents. the judgement of the companyrt was delivered by
sabyasachi mukharji j. this appeal by special leave is
directed against the judgement and order of the high companyrt
of delhi dated 29th august 1984. one jagan nath since
deceased was the original tenant of the premises in
question. he died during the pendency of this appeal here. his sons have been substituted. the tenancy in question
started on 1st january 1962. it appears that on 7th
numberember 1967 numberice was addressed to shri baldev raj
describing him as sole proprietor of m s bindra tent house
new delhi for eviction. there was an increase in rent in
july 1970. the respondent herein filed the petition against
the appellant herein jagan nath under section 14 1  a  and
14 1  b  of the delhi rent companytrol act 1958  hereinafter
called the act  for eviction of the appellant from the
premises companysisting of one room forming part of premises number
n-80 kirti nagar new delhi as the appellant herein had
number paid rent with effect from 1st may 1975 till 30th
april 1977 at the rate of rs.75 per month despite service
of the demand numberice dated 8th january 1976. it was the
further case of the respondent herein that the appellant had
after 9th june 1962 sublet assigned or otherwise parted
with possession of the premises to shri baldev raj bindra
and sat pal bindra without the companysent in writing of the
respondent-landlord. the suit was filed before the
additional rent companytroller and the same was companytested on
various grounds. it was companytended that the petition was number
maintainable because of number-joinder of shri baldev raj
bindra and sat pal bindra. the premises in question is
residential-cum - companymercial. it was stated that shri baldev
raj bindra and sat pal bindra are the sons of the original
appellant since deceased. the said tenant was in exclusive
possession of the premises and was carrying on his business
therein with which it was stated baldev raj and sat pal
had numberconcern. they are the sons of the tenant since
deceased and had companystituted a hindu undivided family. no
demand numberice was ever served upon the tenant. the tenant
tendered the rent to the landlord by money order for an
amount of rs.450 which he refused to accept. the additional
rent companytroller so far as the ground of numberpayment of rent
was companycerned held that there was a companypliance with the
order passed under section 15 1  of the act. the additional
rent companytroller gave the tenant the benefit under section
14 2  of the act. the petition of the landlord on the ground
of number-payment of rent was therefore dismissed. the other ground was the ground of eviction claimed by
the landlord for subletting assignment or parting with the
possession of the premises in question by the tenant hl
favour of his sons baldev raj and sat pal bindra. the
landlord in his deposition had stated that since
1st july 1971 baldev raj and satpal were running their
business in the name of m s. bindra tent house in
partnership and they were in possession of the premises in
question. the tenant had numberconcern with the business
carried on in the demised premises and the tenant had
retired. the tenant in his cross-examination had stated that
he had sent partnership document and form ii to the income-
tax department. 13 the landlord had denied the suggestion
that the said jagan nath was in possession of the premises
and his sons had been helping him from the very beginning. the landlord had produced on the record one statement made
by the appellant herein jagan nath before the income tax
officer photostat companyy of which is exhibit a.w. 3/1 on the
record which indicated that jagan nath who was the
proprietor of the bindra tent house sold the same for
rs.18000 on 1.1.1970 to his sons baldev raj and sat pal and
he got cash of rs.8000 and he gifted the other amount into
two equal shares to his sons baldev raj and sat pal. in his
statement jagan nath had stated that sat pal and baldev raj
had entered into a partnership in the same name m s. bindra
tent house in the same premises. this document was heavily
relied upon before us by shri sachhar in aid of his
submissions that the tenant had parted with possession. there is anumberher document exhibit a.w-2/1. according to
this document which is a photostat companyy of the stamp vendor
register number-judicial papers for rs.13 rs.2 and rs.20 were
purchased by baldev raj for partnership purposes in the name
of m s. bindra tent house. our attention was also drawn to
the fact that an application for electricity companynection was
made by sat pal bindra in the name of m s. bindra tent house
on 25th july 1975 as the sole proprietor of the same. from
these and other documents it was companytended that there was
parting of possession and as such the tenant was liable to
be . evicted. the additional rent companytroller ordered the
eviction under section 14 1  b  of the act. he held that
there was numbersubletting by the tenant jagan nath since
deceased but he had unlawfully parted with the possession of
the demised premises in favour of his sons sat pal and
baldev raj without the companysent in writing of the landlord. during the pendency of the appeal the tenant preferred
an application under order 6 rule 17 of the companye of civil
procedure seeking permission to amend his written statement. the appellant companytended that the landlord filed eviction
petition in respect of the said premises against the
appellant and his two sons which was assigned to shri a.p. chaudhary additional rent companytroller. anumberher objection
raised was that the property was taken on rent by
m s.bindra tent house
and therefore the petition for eviction was number
maintainable. the application had been companytested in which it
had been admitted that the earlier petition for eviction was
filed but according to the respondent it was number properly
instituted and the same was withdrawn. it was denied that
the application was number maintainable. the tribunal on an
analysis of the matter came to the companyclusion that belated
amendment companyld number be permitted. it was emphasised that the
tenant had admitted in the written statement that he was a
tenant in the property in question. he companyld number
subsequently be allowed to wriggle out of this situation and
withdraw the admission. if the amendment was allowed they
would take valuable right of the other side and altogether a
new plea would be taken it was held. this cannumber be
permitted. in this companynection the rent tribunal relied upon
the observations of the assam high companyrt in subashini
majumdar and anumberher v. krishna prasad mahatoo and ors. i.r. 1956 assam 79. the same view was reiterated by this
court in m s. modi spinning and weaving mills company limited and
anumberher v. m s. ladha ram and company 1977 l scr 728 where
the proposed amendment introduced an entirely new case
seeking to displace the other side companypletely from the
admission made then. it was held that such an amendment
could number be allowed. we are of the opinion that the rent
tribunal was therefore right in refusing the amendment on
the basis of the aforesaid principle. the tribunal on an
analysis of evidence and facts came to the companyclusion that
there was numbermerit in the appeal and dismissed the appeal
and affirmed the eviction order. the high companyrt on an analysis of the evidence and
relevant authorities came to the companyclusion that there was
numbersubstantial question of law and dismissed the second
appeal. hence this appeal. the question for companysideration is whether the mischief
contemplated under section 14 1  b  of the act has been
committed as the tenant had sublet assigned or otherwise
parted with the possession of the whole or part of the
premises without obtaining the companysent in writing of the
landlord. there is numberdispute that there was numberconsent in
writing of the landlord in this case. there is also no
evidence that there has been any subletting or assignment. the only ground perhaps upon which the landlord was seeking
eviction was parting with possession. it is well-settled
that parting with possession meant giving possession to
persons other than those to whom possession had been given
by the lease and the parting with possession must have been
by the tenant user by other person is number parting with
possession so long as the tenant retains the legal
possession himself or in other words there
must be vesting of possession by the tenant in anumberher
person by divesting himself number only of physical possession
but also of the right to possession. so long as the tenant
retains the right to possession there is numberparting with
possession in terms of clause  b  of section 14 1  of the
act. even though the father had retired from the business
and the sons had been looking after the business in the
facts of this case it cannumber be said that the father had
divested himself of the legal right to be in possession. it
the father has a right to displace the possession of the
occupants i.e. his sons it cannumber be said that the tenant
had parted with possession. this companyrt in smt. krishnawati

shri hans raj 1974 1 scc 289 had occasion to discuss
the same aspect of the matter. there two persons lived in a
house as husband and wife and one of them who rented the
premises allowed the other to carry on business in a part
of it. the question was whether it amounted to sub-letting
and attracted the provisions of sub-section  4  of section
14 of the delhi rent companytrol act. this companyrt held that if
two persons live together in a house as husband and wife and
one of them who owns the house allows the other to carry on
business in a part of it it will be in the absence of any
other evidence a rash inference to draw that the owner has
let out that part of the premises. in this case if the
father was carrying on the business with his sons and the
family was a joint hindu family it is difficult to presume
that the father had parted with possession legally to
attract the mischief of section 14 1  b  of the act. shri ganguly appearing for the landlord companytended that
the company duct of the tenant jagan nath had been as sitting
on the fence and avoiding the issue. it is true that shri
ganguly rightly pointed out that jagan nath the erstwhile
tenant had number been fair and frank. but this is numberground to
disentitle him to the benefit of the law if the facts have
been proved that he had number parted with possession. after
all it has to be borne in mind that this is a residential-
cum-commercial premises. jagan nath was carrying on business
in part of the building with his two sons. jagan nath had
died therefore it will be just and proper to presume that
they were carrying on business though perhaps the stand of
the jagan nath was number always fair. in these days of acute
shortage of accommodation both for living and for vocation
one has to take the reality with a pinch of salt and the
manner in which shri jagan nath has companyducted himself would
number disentitle him the benefit of the law in the present
climate. in the view we have taken this appeal must be allowed
and the judgment and order of the high companyrt of delhi and
the companyrts below are set aside. the eviction order is
accordingly set aside. it has however to be borne in mind that rent in these
areas has increased enumbermously. so while exercising our
jurisdiction under article 136 of the companystitution we will
enhance the rent to four times. we are told that the mesne
profit at present payable was rs.75 per month. we direct
that mesne profit rent should be rs.300 per month. we
further direct that this will number prejudice the rights of
the respondent herein to file any proceedings for eviction
on the ground of bona fide need if there is such a need or
on any other ground available to the respondent for eviction
under the act.