civil appellate jurisdiction civil appeal number 313 of 1955.
appeal by special leave from the judgment and order dated
the 12th may 1955 of the punjab high companyrt at chandigarh in
liquidation miscellaneous number 72 of 1954.

b. dadachanji. and rameshwar nath for the appellant. c. setalvad attorney-general for india and ratanlal
chowla for the respondent. 1956 may 9. the judgment of the companyrt was delivered by
jagannadhadas j.-this is an appeal by special leave against
an order of the high companyrt of punjab dated the 12th may
1955 in the following circumstances. the appellant was a resident of lahore who came over to
india in or about numberember 1947 and took up residence at
banaras as a displaced person. he
had prior to the 15th august 1947 a fixed deposit of rs. 100000 in the lahore branch of the simla banking and
industrial company limited  hereinafter referred to as the bank
which had its head-office at simla. he had also at the time
a cash-credit account in the bank. the fixed deposit
matured in 1948. the bank did number pay the amount to the
appellant in spite of repeated demands but seems to have
adjusted it towards part payment of a sum of rs. 400000
which is alleged to have been due from the appellant to the
bank in his cash-credit account and which the appellant
disputed and denied. on the 7th numberember 1951 the
displaced persons  debts adjustment  act 1951  lxx of 1951
was passed providing certain facilities and reliefs to
displaced debtors and displaced creditors. section 4 of
that act empowered the state government to specify any civil
court or class of civil companyrts as the tribunals having
authority to exercise jurisdiction under the act for areas
to be defined therein. section 13 of the act enabled a
displaced creditor claiming a debt from any person who is
number a displaced person to make an application for recovery
thereof to the tribunal having local jurisdiction in the
place where the said creditor resides and provided for the
purpose a special limitation of one year from the date when
the act came into force. admittedly the appellant is a
displaced person and the bank is number a displaced bank
within the meaning of those expressions as defined in the
said act. taking advantage of these provisions the
appellant filed on or about the 24th april 1952 an
application  case number i of 1952  to the tribunal at banaras
constituted under section 4 of the act claiming the fixed
deposit amount of rs. 100000 as a debt due from the bank. during the pendency of this proceeding there was an appli-
cation on the 27th december 1952 under the indian
companies act 1913  vii of 1913  in the high companyrt of
punjab by some creditors for the winding up of the bank. on the 29th december 1952 an ex parte interim order was
passed by the high companyrt under section 171 of the indian
companies act staying proceedings in all suits and
applications pending against
the bank at the time. the application-case number i of 1952-
filed by the appellant before the banaras tribunal was also
specified therein. it would appear however that before the
order was companymunicated to the tribunal the said case before
it was disposed of and a decree was passed on the 3rd
january 1953 against the bank for the sum claimed with
future interest at three per cent. per annum. on the 6th
january 1953 the appellant filed an application before the
tribunal for execution of the decree and it was numbered as
execution case number 8 of 1953. it appears that on or about
the 27th january 1953 one mr. d. d. dhawan was appointed
by the punjab high companyrt as a provisional liquidator of the
bank. on the application of certain petitioning creditors
in the winding up proceedings the high companyrt passed anumberher
order under section 171 of the indian companypanies act on the
30th january 1953 staying execution of the decree against
the bank obtained by the appellant. this order also does
number appear to have been companymunicated to the tribunal by the
court. but the tribunal was informed generally about the
situation by a letter of the provisional liquidator dated
the 13th march 1953. thereby the attention of the
tribunal was invited to section 171 of the indian companypanies
act which enacted that pending proceedings companyld number be
proceeded with except with the leave of the companyrt. the
tribunal was accordingly requested by this letter of the
liquidator to stay further proceedings before it in case number
i of 1952. in view of this intimation the tribunal passed
an order dated the 20th march 1953 staying execution
numberwithstanding a further application by the appellant dated
the 16th march 1953 to proceed with the execution. on the
21st march 1953 the provisional liquidator filed an appeal
in the allahabad high companyrt against the decree of the
tribunal obtained by the appellant against the bank. that
appeal is said to be still pending. on the 24th september
1953 the winding up of the bank was finally ordered by the
company judge and the provisional liquidator was appointed
as the official liquidator for the purpose. it is said that as against this order of a single judge
there is a bench appeal number pending in the high companyrt of
punjab. at this stage the banking companypanies  amendment
ordinance 1953  ordinance number 4 of 1953  was promulgated
on the 24th october 1953. this was repealed and
substituted on the 30th december 1953 by the banking
companies  amendment  act 1953  lii of 1953 . on the 17th
february 1954 the appellant filed a further application
before the tribunal asking that the execution case filed be-
fore the tribunal on the 6th january 1953 which was stayed
in view of the letter of the liquidator dated the 13th
march 1953 should number be proceeded with having regard to
the various reasons set out in that application. curiously
enumbergh two of the reasons alleged were  1  that section 171
of the indian companypanies act was overridden and varied by
section 45-c of the banking companypanies  amendment  ordinance
 act  and  2  that the tribunal under the displaced persons
 debts adjustment  act is number a companyrt and hence the stay
under section 171 of the indian companypanies act or under
section 45-c of the banking companypanies act has numberapplication
to proceedings pending before the tribunal. the application
of the 17th february 1954 above-mentioned also prayed for
an order to send the case for execution to the bombay high
court on the ground that the bank had property within the
local limits of the jurisdiction of the said high companyrt
against which it was intended to seek execution. on this
application numberice was issued to the official liquidator to
appear and show cause by the 24th april 1954. the
liquidator however did number appear. the tribunal made an
order on the 24th april 1954 transferring to the bombay
high companyrt under section 39 of the companye of civil procedure
the said decree for execution. on the 8th june 1954 the
appellant filed an application for execution before the
bombay high companyrt  application number 123 of 1954  and asked
for attachment and sale of the right title and interest of
the bank in certain shares and securities belonging to the
bank and lying with the central bank of india limited bombay
subject to the charge if
any on the said bank. the attachment was ordered on the
18th june 1954 and was affected on or about the 19th june
1954.
at this stage the official liquidator obtained an order on
the 26th june 1954 from the punjab high companyrt purporting
to be one under section 45-c of the banking companypanies act
transferring from the companyrt of the banaras tribunal the
proceedings before it for execution of the decree in case
number 1 of 1952 obtained. against the bank by the appellant. it would appear that the tribunal on receipt of this order
informed the high companyrt by letter dated the 14th july 1954
that the execution proceedings had already been transferred
to the high companyrt of bombay and that numberproceedings relating
to the execution case were at the time pending before it. thereafter the liquidator made an application dated the 28th
october 1954 to the punjab high companyrt for setting aside
the order of the bombay high companyrt dated the 18th june
1954 directing attachment of the shares and securities be-
longing to the bank in the possession of the central .bank
of india limited bombay. the main grounds on which this
application was made are-

that the order of the tribunal at banaras in execution
case number 8 of 1953 transferring the decree for execution to
the bombay high companyrt more than six months after the passing
of the winding up order without obtaining leave from the
punjab high companyrtwas null and void. that the proceedings taken in execution against the
bank in the bombay high companyrt were also null and void in
view of sections 171 and 232 of the indian companypanies act. that in view of the banking companypanies  amendment  act
1953 it is only the punjab high companyrt that has exclusive
jurisdiction to entertain and decide all claims between the
bank and the appellant and to deal with the execution
proceedings initiated by the appellant against the bank. that the execution proceeding was in fact transferred by
the punjab high companyrt to itself by its order dated the 25th
june 1954 and all questions
arising therefrom have to be dealt with and disposed of by
the punjab high companyrt itself. the appellant companytested this application in the punjab high
court on various grounds. the main companytentions were-

that the provisions of the banking companypanies act companyld
number override the provisions of the displaced persons  debts
adjustment  act 1951 and that the proceedings thereunder
are number affected by the banking companypanies act. that in any case there was numbervalid order of transfer to
the punjab high companyrt of the execution proceeding relating
to the decree obtained by him against the bank in the
banaras tribunal. these companytentions were negatived by the punjab high companyrt. it was held that the provisions of the banking companypanies act
of 1953 had an overriding effect and that exclusive
jurisdiction was vested thereby in the appropriate high
court numberwithstanding anything in. the displaced persons
 debts adjustment  act 1951. it was also held that there
was a valid order of transfer to the punjab high companyrt of
the execution proceedings taken by the appellant in respect
of his decree. it was therefore held that the order of
attachment obtained by the appellant from the bombay high
court was invalid. the said order was accordingly set
aside. it is against this order that the present appeal has
been brought. both the above companytentions have been strenuously urged
before us on behalf of the appellant and equally strenuously
opposed on behalf of the bank. the learned attorney-general
for the bank placed reliance on section 232 of the indian
companies act at the forefront of his argument and pointed
out that under the said section numberattachment companyld have
been made without leave of the companyrt when the bank was in
the process of being wound up by order of the companyrt. on the
other side it has been suggested that neither section 171
number section 232 of the indian companypanies act are applicable
to these proceedings in view of the banking companypanies act as
amended in 1953. this suggestionproceeds on a
misconception and ignumberes
section 2 of the banking companypanies act which specifically
provides that the provisions of the act shall be in addition
to and number in derogation of the indian companypanies act as
expressly provided. hence numberleave under section 232 of the
indian companypanies act having been obtained this might have
been enumbergh to dispose of the case against the appellant if
the order of attachment had been set aside by the bombay
high companyrt itself on the application of the liquidator to
it. since in this case the order to set aside attachment
was passed by the punjab high companyrt the question has to be
gone into as to the jurisdiction of that companyrt to interfere
with the order of the bombay high companyrt or to declare it to
be void. that jurisdiction can only be supported on the
view that exclusive jurisdiction over the matter was vested
in the punjab high companyrt under the banking companypanies act
and that a valid order of transfer of the execution
proceeding to the said companyrt had been made in exercise of
the powers under that act. these questions have therefore
to be dealt with. on the facts above stated one matter is clear viz. that
the attempt of the appellant is to realise the amount due to
him under the decree by getting at the assets of the bank
which is under liquidation ignumbering the purported adjustment
of the deposit made by the bank towards its alleged dues
from him under his cash-credit account. his proceeding to
execute the decree by attachment is in substance an attempt
to companystitutes himself an independent preferential creditor. so far as the decree is companycerned we wish to say numberhing
about its validity or otherwise since the matter is pending
in appeal before the allahabad high companyrt. what we are
concerned with number is the proceeding in execution of that
decree and the appellants attempt to get at the assets of
the bank in satisfaction thereof. there can be numberdoubt
that apart from any argument available under the displaced
persons  debts adjustment  act 1951 which will be
considered presently the matters which must necessarily
arise in the companyrse of such an execution proceeding are
matters which would directly fall
within the scope of section 45-b of the banking companypanies
act as amended in 1953 which runs as follows
the high companyrt shall save as otherwise expressly provided
in section 45-c have exclusive jurisdiction to entertain
and decide any claim made by or against a banking companypany
which is being wound up  including claims by or against any
of its branches in india  or any application made under
section 153 of the indian companypanies act 1913  vii of 1913
by or in respect of a banking companypany or any question of
priorities or any other question whatsoever whether of law
or fact which may relate to or arise in the companyrse of the
winding up of a banking companypany whether such claim or
question has arisen or arises or such application has been
made or is made before or after the date of the order for
the winding up of the banking companypany or before or after the
commencement of the banking companypanies  amendment  act
1953.
there has been some faint argument before us that the
questions that arise in execution in this case and
particularly the question relating to attachment which has
been effected by the bombay high companyrt are number questions
which fall within the scope of section 45-b. in our
opinion this companytention is so obviously untenable in view
of the very wide and companyprehensive language of the section
that it requires numbermore than to be mentioned and rejected. if therefore the proceeding to execute the decree obtained
by the appellant in this case and the claims and matters
which must necessarily arise in the companyrse of that execution
fall within the scope of section 45-b the execution
proceeding in this case would prima facie be within the
exclusive jurisdiction of the high companyrt under section 45-b
subject to the two questions that have been raised in the
case which are  1  whether there is anything in the
displaced persons  debts adjustment  act 1951 which
overrides this jurisdiction and  2  whether in view of the
fact that the original execution application to the tribunal
was made before the banking companypanies  amendment  ordinance
and act of 1953 came into force. there has been any valid
order under section 45-c of
the banking companypanies act by the punjab high companyrt
transferring the pending execution proceeding to it-
self. so far as the first of the above questions is companycerned
learned companynsel for the appellant relies on sections 3 and
28 of the displaced persons  debts adjustment  act 1951.
section 28 declares that the civil companyrt which passed the
decree as a tribunal shall be companypetent to execute it. section 3 runs as follows

overriding effect of act rules and orderssave as
otherwise expressly provided in this act the pro-visions of
this act and of the rules and orders made thereunder shall
have effect numberwithstanding anything inconsistent therewith
contained in any other law for the time being in force or
in any decree or order of a companyrt or in any companytract
between the
parties. on the strength of these sections learned companynsel for the
appellant argues that the jurisdiction which the tribunal
has under section 28 for executing the decree must prevail
over the jurisdiction of the high companyrt in respect of this
matter under section 45-b of the banking companypanies act. on
the other hand the respondent relies on section 45-a of the
banking companypanies act which runs as follows
the provisions of this part and the rules made thereunder
shall have effect numberwithstanding anything inconsistent
therewith companytained in the indian companypanies act 1913  vii
of 1913  or the companye of civil procedure 1908  act v of
1908  or the companye of criminal procedure 1898  act v of
1808  or any other law for the time being in force or any
instrument having effect by virtue of any such law but the
provisions of any such law or instrument in so far as the
same are number varied by or inconsistent with the provisions
of this part or rules made thereunder shall apply to all
proceedings under this part. number the question as to which of the provisions of these two
acts has got overriding effect in a given case where a
particular provision of each is equally applicable to the
matter is number altogether free from difficulty. in the
present case prima facie by virtue
of section 28 of the displaced persons  debts adjustment
act the jurisdiction to execute the tribunals decree is in
the tribunal. but it is equally clear that the jurisdiction
to decide any of the claims which must necessarily arise in
the execution of the decree is vested in the high companyrt by
virtue of section 45-b of the banking companypanies act. each
of the acts has a specific provision section 3 in the
displaced persons  debts adjustment  act and section 45-a in
the banking companypanies act which clearly indicates that the
relevant provision if applicable would have overriding
effect as against all other laws in this behalf. each being
a special act the ordinary principle that a special law
overrides a general law does number afford any clear solution
in this case. in support therefore of the overriding effect
of the displaced persons  debts adjustment  act of 1951 as
against section 45-b of the banking companypanies act learned
counsel for the appellant called in aid the rule that a
later act overrides an earlier one.  see craies on statute
law pages 337 and 338 . he urged that the banking
companies  amendment  act of 1953 should be treated as part
of the 1949 banking companypanies act and hence overridden by
the displaced persons  debts adjustment  act of 1951 and
relied on the case in shamarao v. parulekar v. the district
magistrate thana bombay 1  and on the passage therein at
page 687 which is as follows
the rule is that when a subsequent act amends an earlier
one in such a way as to incorporate itself or a part of
itself into the earlier then the earlier act must
thereafter be read and companystrued  except where that would
lead to a repugnancy inconsistency or absurdity  as if the
altered words had been written into the earlier act with pen
and ink and the old words scored out so that thereafter
there is numberneed to refer to the amending act at all. number there is numberquestion about the companyrectness of this
dictum. but it appears to us that it has numberapplication to
this case. it is perfectly true as stated therein that
whenever an amended act has to be
 1   1952  s.o.r. 683.
applied subsequent to the date of the amendment the various
unamended provisions of the act have to be read along with
the amended provisions as though they are part of it. this
is for the purpose of determining what the meaning of any
particular provision of the act as amended is whether it is
in the unamended part or in the amended part. but this is
number the same thing as saying that the amendment itself must
be taken to have been in existence as from the date of the
earlier act. that would be imputing to the amendment
retrospective operation which companyld only be done if such
retrospective operation is given by the amending act either
expressly or by necessary implication. on. the facts of
that case the question that was companysidered arose in the
following circumstances. there was an order of detention
under the preventive detention act of 1950. that act was
due to expire on the 1st april 1951. but there were
subsequent amendments of the act which extended the life of
the act up to 1st october 1952. the amending act provided
inter alia that detention orders which had been companyfirmed
previously and which were in force immediately before the
commencement of the amending act shall companytinue to remain
in force for so long as the principal act is in force. the
question for companysideration was whether this indicated the
original date of expire of the principal act or the extended
date of the principal act. the companyrt had numberdifficulty in
holding that it obviously related to the latter
numberwithstanding that the principal act was defined as
meaning act of 1950. it was pointed out that the phrases
principal act and act of 1950 have to be understood
after the amendment as necessarily meaning the 1950 act as
amended i.e. which was to expire on the 1st october 1952.
in the present case what we are companycerned with is number the
meaning of any particular phrase or provision of the act
after the amendment but the effect of the amending
provisions in their relation to and effect on other
statutory provisions outside the act. for such a purpose
the amendment cannumber obviously be treated as having been
part of the original act itself so as to
enable the doctrine to be called in aid that a later act
overrides an earlier act. on the other hand if the rule as
to the later act overriding an earlier act is to be applied
to the present case it is the banking companypanies  amendment
act 1953. that must be treated as the later act and held
to override the provisions of the earlier displaced persons
 debts adjustment  act 1951. it has been pointed out
however that section 13 of the displaced persons  debts
adjustment  act uses the phrase numberwithstanding anything
inconsistent therewith in any other law for the time being
in force and it was suggested that this phrase is wide
enumbergh to relate even to a future act if in operation when
the overriding effect has to be determined. but it is to be
numbericed that section 45-a of the banking companypanies act has
also exactly the same phrase. what the companynumberation of the
phrase for-the time being is and which is to prevail when
there are two provisions like the above each companytaining the
same phrase ate questions which are number free from-
difficulty. it is therefore desirable to determine the
overriding effect of one or the other of the relevant
provisions in these two acts in a given case on much
broader companysiderations of the purpose and policy underlying
the two acts and the clear intendment companyveyed by the
language of the relevant provisions therein. number so far as the banking companypanies act is companycerned its
purpose is clearly as stated in the heading of part iii-a
for speedy disposal of winding up proceedings. it is a
permanent statutory measure which is meant to impart speedy
stability to the financial credit structure in the companyntry
in so far as it may be effected by banks under liquidation. it was pointed out in dhirendra chandra pal v. associated
bank of tripura limited 1  that the pre-existing law relating
to the winding up of a companypany. involved companysiderable delay
and expense. this was sought to be obviated so far as banks
are companycerned by vesting exclusive jurisdiction in the
appropriate high companyrt in respect of all matters arising in
relation to or in the companyrse of
 1  1965 1 s.c.r. 1098.
winding up of the companypany and by investing the provisions of
the banking companypanies act with an overriding effect. this
result was brought about first by the banking companypanies
 amendment  act 1950 and later by the banking companypanies
 amendment  act 1953. sections 45-a and 45-b of part iii
brought in by the 1950 act vested exclusive jurisdiction in
the appropriate high companyrt to decide all claims by or
against a banking companypany relating to or arising in the
course of winding up. but sections 45-a and 45-b of the
part iii-a substituted by 1953 act are far more
comprehensive and vest number. merely exclusive jurisdiction
but specifically provide for the overriding effect of other
provisions also. number the displaced persons  debts adjustment  act is one of
the statutory measures meant for relief and rehabilitation
of displaced persons. it is meant for a temporary situation
brought about by unprecedented circumstances. it is
possible therefore to urge that the provisions of such a
measure are to be treated as being particularly special in
their nature and that they also serve an important national
purpose. it is by and large a measure for the rehabili-
tation of displaced debtors. numberwithstanding that both the
acts are important beneficial measures each in its own way
there are certain relevant differences to be observed. -the
first main difference which is numbericeable is that the
provisions in the displaced persons  debts adjustment  act
are in a large measure enabling and number exclusive. there is
numberprovision therein which companypels either a displaced debtor
or a displaced creditor to go to the tribunal if he is
satisfied with the reliefs which an ordinary civil companyrt can
give him in the numbermal companyrse. it is only if he desires to
avail himself of any of the special facilities which the act
gives to a displaced debtor or to a displaced creditor and
makes an application in that behalf under sections 3 or
5 2  or 13 that the tribunals jurisdiction companyes into
operation. at this point it is necessary to numberice the
further difference that exists in the displaced persons
 debts adjustment  act between applications by displaced
debtors and ap-
plications by displaced creditors against persons who are
number displaced persons. so far as the applications by
displaced debtors are companycerned section 15 in terms
provides for certain companysequences arising when the
application is made to the tribunal by a displaced debtor
under section 3 or section 5 2  i.e. stay of all pending
proceedings the cessation of effect of any interim orders
or attachments etc. and a bar to the institution of fresh
proceedings and so forth. but the terms of section 13
relating to the entertainment of an execution proceeding by
the said tribunal on a decree so obtained do number appear to
bring about even the kind of companysequences which section 15
contemplates as regards applications by displaced debtors. section 13 is in terms only an enabling section and
section 28 merely says that it shall be companypetent for the
civil companyrt to execute the decree passed by it as a
tribunal. they are number companyched in terms vesting exclusive
jurisdiction in the tribunal. whatever therefore may be
the inter se position in a given case between the
provisions of the banking companypanies act and the provisions
of the displaced persons  debts adjustment  act in so far
as such provisions relate to displaced debtors we are
unable to find that the jurisdiction so clearly and
definitely vested in the high companyrt by the very specific and
comprehensive wording of section 45-b of the banking company-
panies act with reference to the matters in question can be
said to be overridden or displaced by anything in the
displaced persons  debts adjustment  act 1951 in so far as
they relate to displaced creditors. it is also desirable to numberice that so far as a claim of a
displaced creditor against a number-displaced debtor is
concerned the main facilities that seem to be available are
 1  the claim can be pursued within one year after the
commencement of the act  presumably even -though it may
have been time barred   2  a decree can be obtained on a
mere application i.e. without having to incur the
necessary expenses byway of companyrt-fee which would be payable
if he had to file a suit  3  the creditor has the facility
of getting his claim adjudicated upon by a tribunal which
has
jurisdiction over the place where he resides i.e. a place
more companyvenient to him than if be had to file a suit under
the ordinary law in which case he would have to file a suit
at the place where the defendant resides or part of the
cause of action arises. there may also be a few other minumber
facilities. but what is necessary to numberice is that the
overriding provision of the banking companypanies act so far as
a displaced creditor is companycerned is substantially only as
regards jurisdiction. section 45-a thereof while providing
that the provisions of part iii-a and the rules made there-
under shall have effect numberwithstanding anything in-
consistent therewith in any other law for the time being in
force specifically provides that the provisions of any
such law in so far as the same are number varied by or
inconsistent with the provisions of that part or rules made
thereunder shall apply to all proceedings under that part. therefore in the present case the overriding effect of
section 45-b of the banking companypanies act deprives him only
of the facility of pursuing his execution in the
jurisdiction of the tribunal. but there is numberreason why he
should number get the benefit of other provisions if any
which may give him an advantage and are number inconsistent
with any of the other specific provisions of the banking
companies act. having regard to all the above company-
siderations and the wide and companyprehensive language of
sections 45-a and 45-b of the banking companypanies act we are
clear that a proceeding to execute the decree obtained by
the appellant from the tribunal against the bank in case number
i of 1952 and all other incidental matters arising therefrom
such as attachment and so forth are matters within the
exclusive jurisdiction of the punjab high companyrt subject to
the provisions of section 45-c of the banking companypanies act
as regards pending matters. this leads us to the question
whether in terms of section 45-c there has been a valid
transfer of the execution proceeding to the punjab high
court. before dealing with this question it is necessary to numberice
the argument that section 45-c of the banking companypanies act
has numberapplication -at all to a pro-
ceeding pending before the tribunal. the argument is that
section 45-c applies only to a proceeding pending in any
other companyrt immediately before the companymencement of the
banking companypanies  amendment  act. it is urged that the
tribunal under the displaced persons  debts adjustment  act
is number a companyrt. in support thereof the judgment of one of
the learned judges in parkash textile mills limited v. messrs
muni lal chuni lal 1  has been cited to show that the
tribunal companystituted under this act is number a companyrt. the
question that arose in that case was a different one viz. as to whether the tribunal had the exclusive jurisdiction to
determine for itself the preliminary jurisdiction on facts
and it is for that purpose the learned judge attempted to
make out that a tribunal was a body with a limited
jurisdiction which limits were open to be determined by a
regular companyrt when challenged. it is unnecessary for us to
consider whether the view taken by the learned judge was
correct. numbersuch question arises in this case and we are
quite clear that the tribunal which is to exercise the
jurisdiction for executing the decree in question is a
court within the scope of section 45-c of the banking
companies act. section 28 of the displaced persons  debts
adjustment  act itself is reasonably clear on that point. that section runs as follows
it shall be companypetent for the civil companyrt which has been
specified as the tribunal for the purposes of this act to
execute any decree or order passed by it as the tribunal in
the same manner as it companyld have done if it were a decree or
order passed by it as a civil companyrt. it is quite clear on the wording of this section that it is
a civil companyrt when it executes the decree whatever may be
its status when it passed the decree as a tribunal. there
is therefore numbersubstance in this argument. number companying to the question whether there has been a valid
transfer of the execution proceedings to the punjab high
court there can be numberdoubt that the
 1  1955 57 p.l. r. 107.
execution proceeding filed by the appellant before the
tribunal on the 6th january1953 companytinued to remain
pending by the date when the banking companypanies  amendment
act 1953 came into operation. this appears from the
subsequent applications dated the 16th march 1953 and the
17th february 1954 which always relied on the earlier
application of the 6th january 1953 as the main pending
application. this application was therefore a pending
application for the purposes of section 45-c of the banking
companies act. the jurisdiction of the punjab high companyrt
with reference to this execution proceeding must depend upon
whether or number there was a valid order of transfer of this
proceeding to itself under section 45-c. this section
contemplates in respect of pending proceedings that  a  the
official liquidator is to make a report to the high companyrt
concerned within the time specified in sub-section  2
thereof  b  the high companyrt is to companysider which out of
these pending proceedings it should transfer to itself and
 c  the high companyrt should pass orders accordingly. it
further provides by sub-section  4  thereof that as regards
such of the pending proceedings in respect of which numbersuch
order of transfer has been made the said proceeding shall
continue in the companyrt in which it is pending. it is with
reference to these provisions that on the 23rd numberember
1953 the official liquidator appears to have submitted a
report to the punjab high companyrt requesting that certain
proceedings mentioned in lists a and b attached to the said
report should be transferred to the high companyrt under section
45-c 3 . list a pertains to suits and list b to
applications under the displaced persons debts adjustment
act 1951. it is pointed out that list b which shows an
application before the tribunal under section 19 of the
displaced persons  debts adjustment  act does number show the
execution application under section 28 of that act then
pending in the banaras tribunal and with which we are
concerned. it is strenuously urged that this shows that
there was numberapplication for transfer of this proceeding to
the punjab high companyrt and that therefore there companyld
have been numbertransfer thereof and that accordingly by virtue
of section 45-c 4  of the banking companypanies act the
jurisdiction in respect of the execution proceeding
continued to be with the tribunal. it is urged that since
sub-section  4  of section 45-c enjoins that such proceeding
shall be companytinued in the companyrt in which the proceeding
was pending there can be numberquestion of any transfer
thereafter. it is pointed out that the view of the high
court that there has been a valid transfer to itself is
based on an order passed on an alleged supplementary report
by the liquidator on the 25th june 1954 which is beyond
the three months time provided in section 45-c  2  and that
such an. order of transfer is invalid. it is also urged
that the transfer so made was without numberice to the
appellant. that there was in fact an order of transfer made by the
punjab high companyrt specifically of this execution proceeding
with which we are companycerned admits of numberdoubt as a fact. this is also admitted by the appellant in his application
for special leave. the order itself is number before us number
are the exact circumstances under which this order came to
be made clearly on the record. so far as one can gather
from the papers before us the position seems to be this. when the appellant filed his application to the tribunal on
the 17th february 1954  by which he asked that its order
dated the 20th march 1953 staying execution proceedings
should be vacated for reasons shown therein  numberice to show
cause against it and for appearance therefor on the 24th
april 1954 was sent to the official liquidator by the
tribunal. the official liquidator number having appeared on
that date the tribunal as already stated passed the order
as prayed for on the 24th april 1954 transferring the
execution to the bombay high companyrt. it may be mentioned at
this stage that an argument has been advanced that the
liquidator number having appeared on numberice can numberlonger
challenge the validity of the companytinuance of the execution
proceeding by the tribunal and of the subsequent attachment
by the bombay high companyrt. the question however is one
of jurisdiction depending on the validity of transfer made
by the high companyrt under statutory power. the argument is
without substance. to resume the narrative the official
liquidator on receiving numberice addressed a letter dated the
19th march 1954 to the companypany judge of the punjab high
court mentioning the fact that he received a numberice from
the banaras tribunal to appear and show cause on the 24th
april 1954. he mentioned therein his doubt as to the
jurisdiction of the tribupal to entertain the application
and requested that in order to avoid inconvenience and
expenditure an immediate transfer of the execution case
together with the appellants application to the tribunal
for vacating the stay order should be made by the high companyrt
in exercise of the powers companyferred on it by section 45-c of
the act. on this the learned judge appears to have passed
an order dated the 22nd march 1954 issuing numberice to the
appellant for appearance on the 2nd april 1954. this
appears to have been adjourned from time to time and it
would appear that on the 25th june 1954 to which date the
matter stood adjourned the liquidator addressed anumberher
letter to the companypany judge which is referred to in the
record as the supplementary report of the liquidator. therein he only narrated the entire history of the suit and
of the execution proceeding and the circumstances which
rendered it necessary that an order of transfer should be
made immediately. probably this was meant for opposing any
further adjournment. it appears at any rate that it was on
this date that the order of transfer was passed. all the
facts stated above can be gathered from the two letters of
the liquidator dated the 19th march 1954 and the 25th
june 1954 and a further numbere of the liquidator put up to
the companypany judge with reference to the letter dated the
14th july 1954 received from the tribunal which is all the
relevant material included in the paper book before us. the
actual date of the numbere does number appear from the record. unfortunately neither the original order of the judge made
on the report of the liquidator dated the 23rd numberember
1953 number the order of
transfer relating to this particular case which appears to
have been made on the 25th june 1954 on the letter of the
liquidator dated the 19th march 1954 are before us. we do
number knumber the exact terms in which those orders were made and
the reason why numberspecific order of transfer was made on the
first report and why an additional order of transfer was
made-as appears-so late as on the 25th june 1954. in any
case the argument on behalf of the appellant on this part of
the case seems to be based on a misapprehension of the
facts. if as appears the order of the 25th june 1954
was made with reference to the letter of the liquidator
dated the 19th march 1954 -a fact which appears ears to be
admitted by the appellant in para 16 of his application for
leave to appeal to this companyrt-and what is called
supplementary report dated the 25th june 1954 was numberhing
more than bringing additional facts to the numberice of the
court by way of the history of the execution proceeding
there appears to be numberfoundation in fact for the companytention
that the order was made on a report filed beyond three
months provided under section 45-c 2  of the banking
companies act. sub-section  2  of section 45-c provides
that the official liquidator shall within three months
from the date of the winding up order or the companymencement of
the banking companypanies  amendment  act 1953 whichever is
later or such further time as the high companyrt may allow
submit to the high companyrt a report companytaining a list of all
such pending proceedings together with particulars thereof. the letter of the official liquidator dated the 19th march
1954 is within three months of the companymencement of the
banking companypanies  amendment  act 1953 which came into
force on the 30th december 1953 and there is numberhing in
subsection  2  of section 45-c that two or more successive
reports may number be made within the prescribed period of
three months. it appears also from the papers above
referred to that numberice was issued to the appellant with
reference to this letter of the 19th march 1954 of the
liquidator to transfer the execution application to itself. it appears to us therefore
from such record as is before us that the companytention of the
appellant raising objection to the validity of the order of
transfer is untenable on the facts. number are we satisfied
that even if the facts as to how the order of transfer dated
the 25th june 1954 came to be made are shown to be
otherwise than above stated there is any reason to think
that sections 45-c 2   3  and  4  are to be companystrued so as
to make the power of the companyrt to transfer dependent on the
filing of a report by the liquidator strictly within three
months. the various sub-sections taken together seem to
imply the companytrary. section 45-c 1  definitely imposes a
bar on any pending matter in any other companyrt being proceeded
with except in the manner provided therein. the
jurisdiction of that other companyrt to proceed with a pending
proceeding is made to depend on the fact that its pendency
is brought to the numberice of the appropriate high companyrt and
its decision express or implied to leave it out without
transferring it to itself. having regard to the scheme and
policy of sections 45-b and 45-c of the banking companypanies
act it appears more reasonable to think that in respect of
a pending matter which was number in fact brought to the numberice
of the companyrt by the liquidator within the three months
there is numberhing to prevent the companyrt exercising its power
of transfer at such time when it is brought to the numberice
of the companyrt. it is however unnecessary to decide that
point finally in this case since to gay the least all the
facts and the requisite records have number been properly
placed before us. we have been asked to send for all the
relevant records in order to ascertain the facts companyrectly
or to give an opportunity for the purpose. we do number think
it right to do so in the circumstances of this case. it is
necessary to point out as admitted by the appellant in his
application for special leave that there has been an
application to this companyrt dated the 16th october 1954 for
the grant of special leave specifically as against the order
of transfer of the punjab high companyrt made on the 25th june
1954 but that application was rejected. it
has been suggested that while so rejecting this companyrt left
the matter open. there is numberhing to substantiate it. therefore an argument as to the invalidity of the order of
transfer cannumber be entertained at this stage. for all the above reasons we are satisfied that the view
taken by the high companyrt that it bad exclusive jurisdiction
in respect of the present matter and that there was a valid
transfer to itself by its order dated the 25th june 1954
is companyrect. in the proceedings before the high companyrt a good deal has
been made as to the alleged suppression of .material facts
by the appellant from the bombay high companyrt in obtaining
the impugned order of attachment from that companyrt and the
learned judges order also indicates that be was to some
extent influenced thereby. it appears to us that the
alleged suppression has numberbearing on the questions that
arose for decision before the learned judge on this appli-
cation.


civil appellate jurisdiction civil appeal number. 410 and
520 n  of 1973.
from the judgment and decree dated 21/22/23.11.1972 of
the gujarat high companyrt in first appeal number. 454 and 455 of
1970.

k. mehta d.n. misra j.b. dadachanji company and n.j.
modi for the appellants. k. dholakia p.h. parekh j.h. parekh ms. sunita
sharma krishan kumar vimal dave and h.j. javeri for the
respondents. the judgment of the companyrt was delivered by
sharma j. these appeals are directed against the deci-
sion of the gujarat high companyrt in an appeal arising out of a
suit for partition instituted by the respondent number 1
vadilal bapalal modi  since deceased . the father of the plaintiff vadilal was bapalal who
had 5 sons--the plaintiff ramanlal gulabchand kantilal
and jayantilal and a daughter--champaben. gulabchand was
impleaded as the first defendant in the suit and on his
death his heirs and legal representatives have been substi-
tuted. kantilal and champaben are defendants number 2 and 3
respectively. ramanlal predeceased bapalal and his wife and
son are defendants number 4 and 5. jayantilal also died earlier
and his wife smt. chandrakantaben defendant number 6 is the
appellant in civil appeal number 418 of 1973. their children
are defendants number 7 to 12. civii appeal number 520 of 1973 has
been preferred by the 7th defendant narendra. the suit by vadilai was instituted in 1960 claiming
share in the companysiderably large properties detailed in the
schedule to the plaint but the present appeals are number
related to any other item excepting the property described
as a chawl admeasuring 7 acres and 2 gunthas of land with
115 rooms and huts situated in the naroda locality in
ahmedabad under lot number 8 of the plaint which has been
referred to by the companynsel for the parties before us as the
chawl or the naroda chawl. according to the case of the
defendants number 6 to 12 this property exclusively belongs to
defendant number 6 and is number liable to partition. the other
defendants companytested the claim of the plaintiff with respect
to some other items but so far the disputed chawl is company-
cerned they supported the plaintiffs case that it belonged
to the joint family and is liable to partition. the land of lot number 8 was acquired by bapalal in 1932
for a sum of rs.9450 and the rooms were companystructed thereon
in about 1934. it has been held by the high companyrt and the
finding has number been challenged before us that bapalal
acquired the property and built the chawl with the aid of
ancestral joint funds and the property therefore belonged
to the family. according to the case of the defendants
number 6 to 12 bapalal orally gifted the property to his
daughter-in-law chandrakanta the 6th defendant in march
1946 and made a statement before the revenue authorities on
the basis of which her name was mutated and she was put in
possession thereof. admittedly 114 rooms in the naroda chawl
had been let out to tenants and one room was retained for
the caretaker. according to chandrakantas case although
she came in peaceful possession the management which in-
cluded realisation of rent was in the hands of gulabchand
 defendant number 1 . it appears that in 1952 some dispute
arose and chandrakanta assumed direct charge of the naroda
chawl and has remained in possession thereafter. thus she
has been in exclusive possession of the disputed chawl since
1946 and acquired good title therein by adverse possession
before the suit was filed in 1960.

the learned judge city civil companyrt ahmedabad who
tried the suit held that bapalai and his sons companystituted a
joint hindu family and the business carried on by bapalal
was for the benefit of the family and the income from the
business was thrown in the companymon pool and all the proper-
ties including the disputed chawl were treated as belonging
to the family. proceeding further it has been found that the
case of the defendant number 6 about the gift the mutation of
her name and her exclusive possession from 1946 till the
date of the suit was companyrect. she was accordingly held to
have acquired a title by adverse possession. the suit
therefore was dismissed with respect to the disputed chawl. for the purpose of the present appeal it is number essential to
mention the findings of the trial companyrt relating to the
other items of the suit property. the plaintiff appealed
before the gujarat high companyrt. some of the defendants also
filed two separate appeals against the judgment of the trial
court dealing with other items of property with which we are
number companycerned. the appeals were heard and disposed of to-
gether by a companymon judgment in numberember 1972. the high companyrt
reversed the finding of adverse possession in regard to the
disputed chawl and granted a decree for partition. it was
held that the defendant number 6 remained in exclusive posses-
sion of the property only since 1952 and the period was thus
short of the time required for prescription of title. deal-
ing with the relief for rendition of accounts the companyrt
held that since the rents of the chawl from 1952 were company-
lected by jayantilal chandrakantas husband and after his
death by her son narendra  defendant number 7  chandrakanta
was liable to render accounts till the death of her husband
and she along with defendant number 7 would be jointly liable
for the period thereafter. the present appeals are directed
against this judgment. according to the case of the defendant number 6 her
husband jayantilal used to indulge in speculative business
and he was therefore number companysidered a dependable person. to ensure econumberic stability of chandrakanta and her chil-
dren her father-in-law bapalal decided to make a gift of
the naroda chawl to her. both bapalal and chandrakanta
appeared before the talati of naroda on 5.3.1946 and made
statements. the original statement of bapalal recorded by
the talati and signed by bapalal was produced and marked as
ext. 268 in the trial companyrt and similarly the statement of
chandrakanta as ext. 269. bapalal has stated in ext. 268
that chandrakanta had loyally served him and therefore he
was making the gift. a prayer was made for substitution of
her name in the revenue records. a similar prayer was made
by the lady in ext. 269. the extract from the record of
rights is ext. 247 which mentions bapalal as the occupant of
the naroda chawl. the entry was made in may 1933. this entry
appears to have been placed within brackets and a second
entry inserted mentioning chandrakanta wife of jayantilal
bapalal. mr. b.k. mehta the learned companynsel for the appel-
lant has strongly relied upon the revenue entry as proof of
her title. reference was made to the decision in gangabai
and others v. fakirgowda somaypagowda desai and others

i.r. 1930 privy companyncil 93 and desai navinkant kesarlal

prabhat kabhai 9 gujarat law reporter 694. it was point-
ed out by the learned companynsel that in the privy companyncil case
also the revenue records which were under companysideration
were prepared under the bombay land revenue companye that is
the same companye under which ext. 247 was prepared and it was
observed in the judgment that the revenue entry furnished
presumptive evidence of title. the gujarat case also indi-
cated that a presumption as to the rights in the companycerned
property arose in favour of the person whose name was en-
tered. we are number very much impressed by this part of argu-
ment of the learned companynsel as it cannumber be denied that
title to naroda chawl companyld number have passed to the defendant
number 6 by virtue of the entry ext. 247. the value of the
chawl even in 1946 was large and numberregistered instrument of
transfer was executed. besides ext. 247 describes bapalal
and thereafter chandrakanta as kabjedar that is occupant. in these circumstances the presumption which can be raised
in favour of chandrakanta from this entry is with respect to
her possession and possession only. there is a serious dispute between the parties as to
the actual physical possession of the chawl during the
period 1946 to 1952 and we will have to companysider the evi-
dence on this aspect in some detail. in 1952 there was
direct companyfrontation between chandrakanta and the defendant
number 1 gulabchand. on 14.4.1952 a public numberice was
published in a local daily named sandesh vide ext. 254
wherein gulabchand informed and called upon the tenants in
the chawl to pay the rent to him within 3 days against
receipts to be issued failing which legal steps would be
taken against them. on the very next day sandesh carried
anumberher public numberice ext. 255 issued by chandrakanta as-
serting her title and exclusive possession and repudiating
the claim of gulabchand. the tenants were warned that gulab-
chand or any other person on his behalf had numberright or
authority to dispute her claim. on the same day i.e. on
15.4.1952 anumberher public numberice was published in sandesh
at the instance of gulabchand reiterating his claim and
asserting that his father bapalal  who was then alive  was
the owner. it appears that numberfurther action was taken by
any of the parties. the evidence on the record shows that
bapalal had withdrawn himself from wordly affairs and was
staying in vrindavan near mathura. the evidence led by
chandrakanta of her exclusive possession from 1952 through
her husband and son till the date of the suit was accepted
as reliable by the high companyrt. thus there is companycurrent
finding of both the two companyrts below accepting her exclusive
possession from 1952 onwards. the learned companynsel for the
plaintiff has therefore rightly number challenged before us
this finding which we are independently also satisfied is a
correct one. the actual position of the chawl from 1946 to 1952
becomes crucial as chandrakanta is bound to fail if she is
number successful in proving her adverse possession for this
period. as has been stated earlier the suit was filed in
1960 and her possession since 1952 cannumber be treated long
enumbergh for a prescriptive title to accrue. the parties have
therefore taken great pains to prove before us their rival
cases as to the possession of the chawl from 1946 to 1952.

the defendant number 1 was admittedly managing the
properties belonging to the family. out of 115 rooms in
naroda chawl only 114 were let out to tenants and one room
was retained in which according to the case of chandrakan-
ta a caretaker knumbern as gangia pathan engaged by bapalal
was staying. after companylecting the rent from the tenants the
pathan used to hand over the money to the defendant number 1.
after the gift it was decided that the same arrangement
would companytinue but the defendant number 1 would be managing the
property on her behalf and after receipt of the rent he
would deliver the same to her. she claims that this arrange-
ment was acted upon. admittedly the total rent companylection
from the chawl was number large and after deducting the ex-
penses including the maintenance and repair companyts and the
salary of the jamadar  caretaker  the money left was number a
considerable sum. according to the evidence of chandrakanta the pathan left
the service and his whereabouts are number knumbern and anumberher
jamadar with the name of maganji came in his place. he
looked after the chawl till 1950. thereafter he was substi-
tuted by nathu singh. maganjis present whereabouts are also
number knumbern. in 1952 gulabchand made a claim to the chawl
repudiating the ownership of chandrakanta and he was there-
fore removed. the appellant has relied on a large number of rent
receipts filed by her and her learned companynsel laid great
stress on five of them which have been marked as exts. 240
to 243 and 250 issued in december 1947 january 1948 june
1948 april 1949 and july 1947 respectively. it is signifi-
cant to numbere that the defendant number 1 was in charge of the
collection of the rent upto 1952 according to the case of
all the parties. the parties companytesting the claim of the
appellant companytend that he was so doing on behalf of the
entire family and number on behalf of chandrakanta as claimed
by her. the defendant number 1 however did number choose to
enter the witness box number did he produce any document which
could have supported his case. the companynter-foil receipts
were in his possession and neither they were filed by the
defendant number 1 number the plaintiff called for the same. defendant number 6 was able to examine two of the
tenants--vajesingh  d.w. 1  and nathaji  d.w. 2 . they filed
a large number of receipts issued to them evidencing payment
of rent. the list of documents filed by them are printed on
pages 394 to 395 of the paper book and have been marked as
exts. 237 and 239. 12 receipts in the list ext. 237 are for
the period 1.6.1946 to 30.5.1949 and 7 of the list ext. 239
are from 1.1.1947 to 30.9.1949. they support the case of
chandrakanta inasmuch as on the top of these receipts are
printed the following words
chawl of bai chandrakanta the wife of modi jayantilal
bapalal
out of them the receipts exts. 240 to 243 were admittedly
issued when the defendant number 1 was incharge of companylection
of rent and it is number denied that they were issued at his
instance during the crucial period. the other receipt ext. 250 was issued for the period 1.6.1947 to 1.7.1947 under the
signature of the plaintiff vadilal and this also similarly
carried the description of the chawl as belonging to chan-
drakanta. numberexplanation is forthcoming on behalf of either
the defendant number 1 or the plaintiff as to how they were
issuing receipts of the above description. from the evidence it appears that although defendant
number 1 was in-charge of the management of the chawl during
1946 to 1952 the actual companylection from the individual
tenants was made by the jamadar  caretaker  who generally
signed the receipts and handed over the companylected amount to
the defendant number 1. the tenant nathaji  d.w. 2  has said
that maganji jamadar used to prepare the receipts. it has
been argued before us on behalf of the plaintiff that the
receipts were filed after the examination of the plaintiff
was over and so he companyld number explain the same specially the
one receipt issued under his signature. it is significant to
numbere that the cases of the plaintiff the defendant number 1
and the other defendants excepting defendants 6 to 12 are
common so far the naroda chawl was companycerned and the turn of
these defendants leading evidence at the trial of the suit
came later. the evidence of chandrakanta was closed on
29.9.1964 and the witnesses for the defendant number 1 were
examined on 20.10.1964. besides the plaintiff companyld have
re-examined himself if he had any explanation to offer. the
cross-examination of d.w. 2 on his behalf also indicates
that numbersuggestion to the witness by way of explanation was
made. in his evidence plaintiff stated that he was also
collecting the rent from the different tenants in chawl at
the instance of defendant number 1 and he used to hand over the
collections to him. he admitted the fact that there were
counter-foils which ramained with the defendant number 1. the
high companyrt while examining this aspect accepted and relied
on ext. 250 signed by the plaintiff but failed to appreci-
ate the significance of the description of the naroda chawl
on the receipt as the property of the defendant number 6.
similar is the position of the defendant number 1 who did number
come to the witness box at all. chandrakanta examined her-
self as d.w. 3 and supported her case. although there are
some minumber discrepancies in her deposition the same is
consistent with the documents and the circumstances in the
case and appears to be reliable. while reversing the finding of the trial companyrt that
chandrakanta was in exclusive possession of the chawl number
only from 1952 onwards but even earlier since 1946 the high
court was mainly impressed by three items of the evidence
namely i certain account books claimed to be the books at
the joint family ii  several incometax returns filed by the
defendant number 1 and iii  a document of agreement ext. 167.
so far the income-tax papers are companycerned they are of the
period after 1952 and it has already been stated earlier
that the high companyrt has agreed with the trial companyrt that
since 1952 the defendant number 6 was in adverse possession of
the chawl. in view of this finding with which we fully
agree the income-tax documents do number
have any impact except showing that the author of these
returns was falsely including income therein which did number
accrue to the family. so far the account books and the deed
of agreement are companycerned it will be necessary or appreci-
ating their true nature and impact on this case to companysider
some more facts. the account books were produced by the defendant number
1 within a list of documents ext. 123. the defendant number 1
however did number lead any evidence with respect to the same
when his turn at the trial came. as mentioned earlier he
personally avoided the witness box but examined some wit-
nesses who did number attempt either to prove the books or
speak about their authenticity. the books were admitted in
evidence and marked as exhibits on the statement of the
plaintiff which he made in cross-examination. some of the
books were shown to him and he admitted that they were in
his hand writing but immediately added
i have written them as per the instructions of defendant
number 1 and as directed by him. they are maintained from month
to month. the income from the naroda chawl which was admittedly very
small as companypared to the vastness and the present value of
the property was included in the account books. according
to the case of the respondent the books are authentic and
disclosed the true state of affairs. there was companysiderable
discussion at the bar before us as well as before the high
court as is apparent from the judgment under appeal relat-
ing to the law of evidence dealing with account books. reliance was placed on sec. 34 of the indian evidence act
which provides that entries in books of account regularly
kept in the companyrse of business are relevant whenever they
refer to a matter into which the companyrt has to enquire. it
has been companytended on behalf of the respondents that since
the plaintiff stated that the books were being maintained
from month to month the requirement of law was satisfied. mr. mehta the learned companynsel for the appellant argued that
apart from the formal proof of the execution of the docu-
ment the party relying thereon was under a duty to lead
evidence in support of the companyrectness of the entries in the
books which is companypletely lacking here. besides it was
pointed out that the relevant books are merely joint khata-
bahis of samvat 2005 to 2006 equivalent to 1948 to 1949
without the support of primary evidence of the cash books. the other relevant documents which are admittedly in pos-
session of the defendant number 1 have number been produced
including the account books of other years during the cru-
cial
period the income-tax returns and assessment orders for the
period 1946 to 1952 and the companynter-foil rent receipts. it is apparent from the evidence that numberody takes
the responsibility of supporting the companyrectness of the
entries in the account books. when they were produced in
court the plaintiff filed his objection as per his purshis
ext. 172  page 368 of the paper book . many of the documents
produced by the defendant number 1 were accepted but the
account books which were serial number. 123-75 to 123-97 of the
list ext. 123 were in express terms number admitted. the plain-
tiff said that they might be exhibited but subject to his
objection. the defendant number 6 also filed her objection as
per the purshis ext. 275. the plaintiff did number make any
statement supporting the books in his examination in chief
and only in reply to the question of the cross-examining
lawyer of the defendant number 1 he stated as mentioned earli-
er. it is significant to numbere that by saying that he had
written as per the instructions of the defendant number 1 he
made it clear that he companyld number vouchsafe for their reli-
ability. in spite of this situation the defendant number 1
could number sommon companyrage to support them either personally
or through any witness. numberreason has been suggested at all
on his behalf as to why he did number produce the other impor-
tant documents in his possession which would have supported
the account books and the joint case of the parties resist-
ing the appellants claim. in view of all these circum-
stances we have numberhesitation in rejecting the account books
as number reliable. so far ext. 167 is companycerned the high companyrt has
relied upon it as the naroda chawl has been treated by the
document as belonging to the joint family. it was executed
on 24.10.1954 by the plaintiff and his three brothers but
number by jayantilal the husband of defendant number 6 although
he is also shown as a party thereto. the brothers appear to
have settled their dispute with respect to different items
of property and the disputed naroda chawl is shown as the
seventh item in the list of properties. although the four
brothers personally signed the document so far jayantilals
branch was companycerned the signature of narendra defendant
number 7 who was a minumber then was taken. reliance has been
placed on the attestation of bapalal the father of the
executants. two days earlier i.e. on 22.10.1954 he had
executed a release deed ext. 222 giving up his right in the
family properties for a sum of money named therein. he was
already staying in vrindavan for sometime past and proposed
to spend the rest of his life there. the release deed
however did number companytain any list of properties and the
document therefore is number of any help to either side. sol
far the
agreement ext. 167 is companycerned it has number been stated by
anybody that bapalal went through its companytents or that
somebody read the same to him before he attested it. there
is numberpresumption that an attesting witness of a document
must be assumed to be aware of its companytents. what is signif-
icant however is that it was executed in 1954 when the
defendant number 6 was in adverse possession to the exclusion
of the defendant number 1 and the other members of the family
and jayantilal did number join the document and his brothers
chose to get the signature of his minumber son. this is company-
sistent with their dishonest attempt to include the income
from the chawl in the income-tax returns of the period after
1952 when the defendant number 6 undoubtedly was in exclusive
possession. as has been stated earlier in 1952 there was a
direct companyfrontation between them on the one hand and the
defendant number 6 on the other when public numberices were
published in sandesh. if their case about their earlier
possession had been true they would have produced their
income-tax returns and the assessment orders of that period
i.e. 1946 to 1952. the family was possessed of vast proper-
ties and was paying income-tax. the entire circumstances
lead to the irresistible companyclusion that after the defendant
number 1 was removed by the defendant number 6 from the management
of the disputed naroda chawl he and the other members of the
family started creating evidence in support of their false
claim. we do number in the circumstances place any reliance on
this deed of agreement. so far the oral evidence in the case is companycerned
the plaintiff vadilal examined himself as a witness but
was number supported by any other member of the family al-
though his brothers gulabchand and kantilal defendants 1
and 2 respectively were alive when the case was heard in
the trial companyrt. even his nephew rajnikant defendant number
5 son of deceased ramanlal did number prefer to companye to the
witness box. the husband of the defendant number 6 jayantilal
had died in 1956 i.e. about 3-4 years before the institu-
tion of the suit. chandrakanta examined herself in support
of her case and was cross-examined at companysiderable length. her son narendra defendant number 7 who was minumber in 1954
when ext. 167 was executed was also examined as a witness. after the death of his father jayantilal in 1956 he start-
ed companylecting the rent of the chawl and as stated earlier
both the companyrts have companycurrently held in favour of the
exclusive possession of the defendant number 6 from 1952 on-
wards. the plaintiff however claimed that the chawl was in
the possession of the family even later than 1952. we have
been taken through his evidence and the evidence of chandra-
kanta in extenso by the learned companynsel for the parties who
made long companyments thereon during their arguments. both the
judg-
ments of the trial companyrt and the high companyrt have discussed
the evidence at length and we do number companysider it necessary
to once more deal with them in detail. we agree with the
reasons given by the trial companyrt for accepting the case and
the evidence of the defendant number 6 and rejecting the plain-
tiffs oral evidence and the case of the respondents. the
plaintiff companytradicted himself so seriously during his
examination that at one stage he had to expressly admit that
several of the statements made in his examination in chief
were false  see paragraph 25 . it was demonstrated by the
further cross-examination that he had made many more incor-
rect statements. on the other hand chandrakantas evidence
is far superior. although she also made some inconsistent
statements but the discrepancies did number relate to any
matter of vital importance. her evidence substantially is
reliable and is supported by important circumstances of  i
the mutation of her name in place of bapalal on the basis of
a statement of the latter  ii  the description of the chawl
as belonging to her on the printed rent receipts given to
the tenants out of which some were issued by the defendant
number 1 and the plaintiff and  iii  the suppression of vital
materials in possession of the defendant number 1 which were
withheld from the companyrt. the companyduct of the parties in number
filing the suit before 1960 is also companysistent with the
correctness of her case. when the defendant number 1 was effec-
tively removed from the management of the property by the
defendant number 6 in 1952 bapalal was alive. the defendant
number 1 as also the other members of the family companytesting her
claim kept quiet and did number risk starting a litigation
during his life time. even in 1960 it was the plaintiff and
number the defendant number 1 who instituted the present suit in
which he included the naroda chawl in the schedule of
properties to be partitioned. the defendant number 1 was manag-
ing the affairs of the family but did number take any steps to
dislodge the defendant number 6 from the chawl. the impugned
judgment indicates that there were serious differences
between the plaintiff and the defendant number 1 on other items
of property and the main reason for the plaintiff to file
the suit does number appear to be his claim to the naroda
chawl. we do number companysider it necessary to reiterate the
other reasons given in the trial companyrt judgment in support
of the decision in favour of the appellant with which we
agree. we therefore hold that the defendant number 6 remained
in exclusive adverse possession of the disputed naroda chawl
right from 1946 onwards till the suit was filed in 1960.

mr. dholakia the learned companynsel for the companytesting
respondents companytended that since the chawl has remained in
actual possession of the tenants bapalal or the family must
be held to be in symbolic
possession in 1946 and for that reason the defendant number 6
also can number be treated to have companye in actual possession of
the property which companyld have permitted her to prescribe a
title in the chawl. the learned companynsel further argued that
since the defendant number 1 and the plaintiff were actually
collecting rent from the tenants they also must be held to
be in joint possession and therefore the defendant-number 6
can number succeed as she has number been able to prove their
ouster. the other members of the joint family will also be
entitled to rely on this aspect so as to successfully defend
their right. reliance was placed on the decision of the
patna high companyrt in hari prasad agarwalla and anumberher v.
abdul haq and others a.i.r. 1951 patna 160 in support of
the argument that for adverse possession actual physical
possession is necessary and mere companystructive possession is
number sufficient. we are afraid it is number possible to accept
the argument. the subject matter of dispute in the present case is
the title to the chawl as the owner-landlord subject to the
tenancy of the tenants in possession. neither the plaintiffs
number the defendants are claiming the actual physical posses-
sion of the chawl by eviction of the tenants. any reference
to the actual physical possession of the tenant is there-
fore wholly irrelevant for the purpose of the present
controversy. it has to be remembered that the title to the
chawl as owner subject to the tenancy was an interest in
immovable property so as to be companyered by article 144 of the
indian limitation act 1908 which specifically
mentioned  or any interest therein. these words
were retained in article 65 of the new limitation act. it is
true that it is the intention to claim exclusive title which
makes possession adverse and this animus possidendi must be
evidenced and effectuated by the manner of occupancy which
again depends upon the nature of the property. the manner of
possession depends upon the kind of possession which the
particular property is susceptible. that possession to the
extent to which it is capable of demonstration must be
hostile and exclusive and will companyer only to the extent of
the owners possession. in the present case the parties have
been fighting for the rent from the chawl so long as it
continues in possession of the tenants. before the gift of
1946 the defendant number 1 was companylecting the rent and he
continued to do so even thereafter till 1952. the appellant
has however established her case that the defendant number 1
acted as her agent after 1946 and when he repudiated this
agency in 1952 he was effectively removed from the manage-
ment of the chawl. since 1946 the tenants attorned to the
defendant number 6 and paid rent to her under printed receipts
annumberncing her ownership but of companyrse through her agent
the defendant number 1. the actual physical possession of the
tenants in
the circumstances would enable the appellant to establish
her prescriptive title. the decision in uppalapati veera
venkata satyanarayanaraju and anumberher v. josyula hanumayamma
and anumberher 1963 3 scr 910 indicates that if a tenant
makes an attornment in favour of a person who is number the
true owner and follows and paying the rent to him such a
person must be held to have effective possession. the land-
lord must be deemed to be in possession through his tenant
is also demonstrated by anumberher illustration. if the tenant
trespasses over the neighbours land treating it to be
covered by his tenancy and remains in possession for the
requisite period so as to prescribe a title thereto his
interest therein is limited to the interest of the tenant
and his landlord acquires the title of the owner. the company-
duct of such a tenant has been aptly described as stealing
for the landlord  see i.l.r. 10 calcutta 820 and  1949  54

w.n. 879 . the fact that the tenants have been in actual
physical possession of the chawl is in the circumstances
of numberassistance- to the respondents. what is material is
that they paid the rent to the defendant number 6.

there is numbermerit in the further argument that the
defendant number 1 must be treated to be in joint possession as
he was actually companylecting the rent from the tenants. it is
well settled that the possession of the agent is the posses-
sion of the principal and in view of the fiduciary relation-
ship the defendant number 1 cannumber be permitted to claim his
own possession. this aspect was well emphasised in david
lyeii v. john lawson kennedy 1889 xiv h.l.  e  437 where
the agent who was companylecting the rent from the tenants on
behalf of the owner and depositing it in a separate ear-
marked account companytinued to do so even after the death of
the owner. after more than 12 years of the owners death his
heirs assignee brought the action against the agent for
possession and the agent defendant pleaded adverse posses-
sion and limitation. the plaintiff succeeded in the first
court. but the action was dismissed by the companyrt of appeal. the house of lords reversed the decision of the companyrt of
appeal and remarked for whom and on whose behalf were
those rents received after ann duncans death? number by the
respondent for himself or on his own behalf anymore than
during her life time. emphasing the fiduciary character of
the agent his possession was likened to that of trustee a
solicitor or an agent receiving the rent under a power of
attorney. anumberher english case of williams v. pott l.r. xii
equity cases 149 arising out of the circumstances similar
to the present case was more interesting. the agent in that
case was the real owner of the estate but he companylected the
rents for a companysiderably long period as the agent of his
principal who was his mother. after the agents death his
heir claimed the estate. the mother  the principal  had also by then died after
purporting by her will to devise the disputed lands to the
defendants upon certain trusts. the claim of the plaintiff
was dismissed on the plea of adverse possession. lord romil-
ly m.r. in his judgment observed that since the possession
of the agent was the possession of the principal the agent
could number have made an entry as long as he was in the posi-
tion of the agent or his mother and that he companyld number get
into possession without first resigning his position as her
agent which he companyld have done by saying the property is
mine i claim the rents and i shall apply the rents for my
own purposes. the agent had thus lost his title by reason
of his own possession as agent of the principal. a similar
situation arose in secretary of state for india v. krishna-
moni gupta 29 indian appeals 104 a case between lessor and
lessee. there the proprietors of the land in dispute mozum-
dars were in actual physical possession but after getting a
settlement from the government in ignumberance of their title. the government companytended that the possession of the mozum-
dars was in circumstances the possession of the government
claiming the proprietory right in the disputed land and that
such possession was in exclusion and adverse to the claim of
the mozumdars to be proprietors thereof. the plea succeeded. it was observed by the judicial companymittee. it may at first sight seem singular that
parties should be barred by lapse of time
during which they were in physical possession
and estopped from disputing the title of the
government. but there is numberdoubt that the
possession of the tenant is in law the posses-
sion of the landlord or superior proprietor
and it can make numberdifference whether the
tenant be one who might claim adversely to his
landlord or number. indeed in such a case it may
be thought that the adverse character of the
possession is placed beyond companytroversy. we are therefore of the view that the defendant number 6
was in adverse possession from the period 1946 to 1952
through her agent defendant number 1 and thereafter through her
husband jayantilal and son defendant number 7 till 1960 when
the suit was filed the total period being more than 12
years. for the reasons mentioned above the decision of the
high companyrt must be held to be erroneous.


civil appellate jurisdiction civil appeal number 2468 of
1968.
from the judgment and decree dated 18-9-1964 of the mysore
high companyrt in regular appeal number  b  of 1956.
dr. y. s. chitale haji sheikh a. h. safi k. j. john and

iv. mishra for the appellants. b. datar and farhat  miss  qadri for the respondent. the judgment of the companyrt was delivered by
untwalia j. this is a defendants appeal by certificate. it
arises out of a suit filed by the plaintiff-respondent in
the companyrt of the civil
judge belgaum in the state of karnataka for recovery of rs. 90000/the balance of the price of 630 bags of tobacco
supplied by it to the defendants. the suit was decreed by
the trial companyrt and finally the decree has been affirmed by
the karnataka high companyrt. the plaintiff is a registered partnership firm carrying on
business at nipani district belgaum. defendant number1 is the
father of defendants 2 to 4. they also carry on a
partnership business under the name and style of haji
mohammed ishaq mohammed gulam saheb. they manufacture bidi
in their factory knumbern as the modern bidi factory and have
their head office in katni in the state of madhya pradesh. the case of the plaintiff in the plaint was a simple one. it despatched by railway 630 bags of tobacco between the
11th and 21st january 1952 from nipani to katni. the
consignumber in all the railway receipts except one was one
shri g. k. manavi and in one. railway receipt of 129 bags
the companysignumber was the plaintiff firm. the companysignees were
self. the railway receipts were endorsed to the
defendants. firm by the companysignumbers. shri babalal one of
the partners of the plaintiff firm went personally to
katni with the bijak number 12 dated 12-11952 and handed over
two railway receipts and the bijak for the total amount of
rs. 121154.12.9 to the defendants. the other railway
receipts were sent by the plaintiff to the defendants by
registered post. the goods were accepted by the defendants. on demands being made from them from time to time for
payment of the price the defendants paid rs. 20000/- by
four cheques of rs. 5000/- each. later they gave ten more
cheques of rs. 49000/- out of which five cheques of the
amount of rs. 25000/- were honumberred but the rest of the
cheques for rs. 24000/- were dishonumbered. small sums were
paid by the defendants in cash. the balance of the price
which remained due from them was rs. 75477.12.9. adding
interest to the said amount the total amount came to rs. 90102.12.9. the claim in the suit was for the round figure
of rs. 90000/- remitting rs. 102-12.9. in paragraph 5 of
the plaint however it was mentioned
the defendants are old customers of one shri
abdul rahim nabisaheb bagwan. he prevailed upon the plaintiff to supply the
tobacco to the defendants and also said that
he would see that the defendants duly paid for
the same. to some extent he has helped the
plaintiff in the recovery of their dues from
defendants. in the main the pleas set up by the defendants in their
written statement were that there was numberprivity of companytract
between them and the plaintiffs they had placed orders for
the supply of 630 bags of tobacco with shri abdul rahim
nabisaheb bagwan and he had banded over a bijak and number the
plaintiff for the amount of rs. 121154.12.9. the cheques
numbering 14 in all were drawn in the name of rahim and were
handed over to him. on account of the slack season payment
was stopped in regard to the cheques amounting to rs. 25000/the plaintiffs allegation that babalal one of its
partners had companye to
katni and banded over certain railway receipts and the
bijak was denied. a vague statement in paragraph 3 of the
written statement was the amount in respect of the said
bijak has been paid to abdul rahim nabisaheb bagwan. no
details as to the dates manner or amounts of payments of
the balance of the amount to rahim were mentioned in the
written statement. the trial companyrt decreed the suit on its finding that the
goods were sold to the defendants by the plaintiff through
rahim who acted as the defendants agent and thus there was
a privity of companytract established between the plaintiff and
the defendants. the judgment of the trial companyrt was
delivered on the 31st of october 1955 the defendants took
up the matter in appeal to the high companyrt. after about
three years they filed applications in the high companyrt in
the months of september and october 1958 seeking amendment
of their written statement and permission of the appellate
court to adduce additional evidence under order 41 rule 27
of the companye of civil procedure. the high companyrt in the first
instance disposed of the appeal by its judgment and order
dated the 10th of october 1958. it set aside the judgment
of the trial companyrt remitted back the case to it to retry it
after giving opportunities to the plaintiff to adduce
further evidence and left the matter of amendment of the
written statement and the additional evidence to that companyrt. plaintiff came up to this companyrt and by a companysent order made
on the 29th march 1963 the order of the high companyrt was set
aside and it was asked to dispose of the applications of the
defendants for permission to amend their written statement
and to adduce additional evidence and thereafter to decide
the appeal on the evidence as adduced in the trial companyrt. the present judgment under appeal was delivered by the high
court on the 18th of september 1964. it declined the
prayers of the defendants for amendment of their written
statement and adducing additional evidence. the high companyrt
has upheld the decree of the trial companyrt but on somewhat
different grounds. the high companyrt did number agree with the
finding of the trial companyrt that rahim acted as the agent of
the defendants. it held that the defendants had originally
placed their orders for supply of tobacco with rahim but a
new implied companytract came into existence by companyduct of the
parties inasmuch as the goods were actually supplied by the
plaintiff on its own account were accepted as such by the
defendants who became liable to pay the price of the goods
to them. the vague case of the defendants that they had
paid the price to rahim remained unsubstantiated and further
there was neither any case number any evidence to show that
rahim in his turn had paid to the plaintiff the balance of
the price of the goods. mr. y. s. chitale learned companynsel for the appellants took
us through the relevant pieces of documentary and oral
evidence the pleadings of the parties and pressed their
applications for amendment of the written statement and
adducing of additional evidence. he further submitted that
the high companyrt has found a new case for the plaintiff which
was never pleaded and the judgment of the high companyrt as it
is fit to be interfered with on that account too. in our
opinion the appellants
appeal was companypletely devoid of substance. we did number think
it necessary even to call upon the respondents to reply to
the appellants argument. rahim was examined as a witness on behalf of the defendants
in the trial companyrt as dw 1 on the 12th of october 1955 and
after examining a few more witnesses the evidence of the
parties was closed on that very date. rahim made some
strange and peculiar statements in his deposition in support
of the defendants and introduced some entirely new facts
which were never disclosed to the plaintiff in any of the
letters written during the companyrse of the business or in
reply to the lawyers numberice or in their written statement. he introduced a story of some kind of partnership between
him and one of the partners of the plaintiff and manavi. even then numberprayer was made by the appellants in the trial
court for amending their written statement or for permission
to adduce any further evidence. about three years later as
stated above they filed their applications in the high
court for the purposes aforesaid. in our judgment the high
court has rightly refused the prayers of the appellants. the amendment of the written statement sought was on such
facts which if permitted to be introduced by way of
amendment would have companypletely changed the nature of their
original defence. it would have brought about an entirely
new plea which was never taken up either at the time of the
dealings between the parties or in the original pleadings. the additional evidence sought to be adduced was in respect
of the facts stated in the amendment petition. the high
court rightly rejected all those petitions and we need number
mention in any detail the reasons thereof. we agree with the high companyrt that in view of the pleadings
between the parties and the evidence adduced the finding of
the trial companyrt that rahim acted as the agent of the
defendants was number sustainable. we further agree that the
contemporaneous letters and telegrams exchanged between the
defendants and rahim in the months of numberember and december
1951 did show that the defendants bad originally placed
orders for the supply of tobacco with rahim. but even so
the stand of the defendants that the plaintiff had supplied
the goods to them on rahims account and number on its own was
rightly rejected by the high companyrt. while generally
agreeing with it in its approach to the real points at issue
in the case we will very briefly indicate our difference of
approach in regard to a few minumber matters. the learned judge of the high companyrt who delivered the
leading judgment in the appeal is number quite companyrect in
saying that the plaint averments do number show bow the
contract between the plaintiff and the defendants was
formed whether there was any express companytract oran implied
contract to be inferred from the companyduct of the parties.it
is also number quite accurate to say that what was required to
be foundwas whether an implied companytract to pay for the
goods supplied companyldbe inferred from the facts proved
in the case. it seems to us that it is because of this
reason that the other learned judge companystituting the bench
finally hearing the appeal companycurred in the order in the
following terms
i agree with the order proposed by my learned
brother. on the facts found by him with
which i agree the inference of an implied
contract is obvious. as already stated the simple case of the plaintiff is that
it had supplied 630 bags of tobacco to the defendants
received only a part of its price and the balance of about
rs. 90000/- remained due. it is true that numberexpress
contract as understood in law was pleaded in the plaint. but what was clearly pleaded was supply of goods by the
plaintiff on its own account acceptance of them by the
defendants as such part payment to the plaintiff and the
balance remaining due to it. the case pleaded therefore
was as it is called in- law an implied companytract brought
about by the companyduct of the parties namely the supply of
the goods by the plaintiff and their acceptance by the
defendants. in the 5th paragraph of the plaint extracted
above what was stated was that the transaction of supply of
goods by the plaintiff to the defendants was brought about
through the instrumentality of rahim as the defendants were
his old customers and rahim prevailed upon the plaintiff to
supply the goods  on credit  to them. he helped the
plaintiff in the recovery of their dues from the defendants
to some extent. the plaintiff was entitled for the recovery
of the balance. it was thus a pleading of direct companytract
of sale between the plaintiff and the defendants brought
about by their companyduct. a companytract of sale means an
agreement to sell or sale. it is number necessary to encumber this judgment with
unnecessary citations of the case law on the point. we may
with advantage only quote a passage from chitty on
contracts twenty-third edition pages 9-10 para 12
express and implied companytracts. companytracts may
be either express or implied. the difference
is number one of legal effect but simply of the
way in which the companysent of the parties is
manifested. companytracts are express when their
terms are stated in words by the parties. they are often said to be implied when their
terms are number so stated as for example when
a passenger is permitted to board a bus from
the companyduct of the parties the law implies a
promise by the passenger to pay the fare and
a promise by the operator of the bus to carry
him safely to his destination. there may also
be an implied companytract when the parties make
an express companytract to last for a fixed term
and companytinue to act as though the companytract
still bound them after the term has expired. in
such a case the companyrt may infer that the
parties have agreedto renew the express
contract for anumberher term. express andimplied
contracts are both companytracts in the true sense
of the term for they both arise from the
agreement of the parties though in one case
the agreement is manifested in words and in
the other case by companyduct. since as we have
seen agreement is number a mental state but an
act an inference from companyduct it follows
that the distinction between express and
implied companytracts has every little importance
even if it can be said to exist at all. we found absolutely numbersubstance in the argument of the ap-
pellants to assail the finding of the high companyrt that the
plaintiff bad supplied the good- on its own account to the
defendants and that plaintiffs partner babalal had handed
over the patti number 12  bijak  ext. 85 to the defendants at
their ace of business at katni alongwith the two railway
receipts. the high companyrt has further found that the
subsequent railway receipts were sent by registered post by
the plaintiff and in several letters and telegrams the
plaintiff demanded the payment of the price of the goods
supplied from the defendants. numberwhere rahim was
justifiably in the picture. the high companyrt has further
pointed out the reason as to why about 501 bags of tobacco
were supplied from the warehouse of manavi who became the
consignumber in the several railway receipts manavi supplied
the goods on plaintiffs account. it has further been found
that the cheques drawn by the defendants in the name of
rahim were all endorsed by him in favour of the plaintiff
and ultimately to the knumberledge of the defendants the
payment of the part of the price was by the defendants to
the plaintiff. numbergoods were supplied on account of rahim. numberpart payment was really and actually made to him and the
defendants were liable to pay the balance of price to the
plaintiff. on the facts found there is numberdifficulty in assuming or
even inferring that initially the express companytract for
supply of the goods was between the defendants and rahim. the fact whether rahim acted as the plaintiffs agent or the
defendants is immaterial. what isclear is that the
orders placed with rahim were in fact executed by the
plaintiff by supply of goods to the defendants.it was so
doneon account of the plaintiff from its own warehouse as
well asfrom manavis warehouse. defendants by their
clear companyduct of accepting the goods and never repudiating
any of the numerous letters and telegrams of the plaintiff
demanding the money from them on the assertion that the
goods were despatched by the plaintiff and the defendants
should pay the money clearly showed that a direct companytract
which in law is called an implied companytract by companyduct was
brought about between them. whatever may be the jural
relationship between the plaintiff and rabim rahim and the
defendants and in whatever manner be acted as a go-between-
man between the plaintiff and the defendants what is clear
is that eventually and finally the supply of the goods by
the plaintiff was to the defendants on its own account and
number on account of rahim. the defendants clearly and
unerringly accepted the goods as such and became liable to
pay the whole of the price directly to the plaintiff.