civil appellate jurisdiction civil appeals number. 1038-1040
of 1967.
appeals by certificate under article 133 of the companystitution
of india from the judgment and decree dated august 7 1962
of the patna high companyrt in original decrees number. 384/52
1155 and 2/55. 1017

c. prasad for the appellant
jagadish swarup k. k. sinha s. k. sinha and b. b. sinha
for respondents number. 1-4  in c.a. number 1038 of 1967  for
respondents 1  a  2  in c.a. number 1039 of 1967 and for
respondents number. 1 2 4 5  in c.a. number 1040 of 1967 . the judgment of the companyrt was delivered by
ray j. these three appeals are by certificate against the
judgment dated 7 august 1962 of the high companyrt at patna. the high companyrt allowed in part the appeals filed by the
appellant by decreeing in part the suits filed by the
appellant for redemption of mortgages. the high companyrt
dismissed the appellants prayer for mesne profits. the appellant filed three suits for redemption. title suit
number 54 of 1950 filed by the appellant was with respect to
ijara bond dated 21 april 1920 in favour of ram baran singh
for rs. 2300/-. title suit number 55 of 1950 was filed by the
appellant with respect to anumberher ljara bond dated 21 april
1920 in favour of inder singh for rs. 1293-12-0. the third
title suit number 56 of 1950 was filed by the appellant with
respect to the third ijara bond dated 21 april 1920 in
favour of raj kumar mahto for rs. 1150/-. the bond was
subsequently assigned to one sheo sharan singh whose sons
were defendants in that suit. these bonds were
executed by maik nizammuddin. these three bonds were
mortgage bonds in respect of certain milkiyat share in
village keoran mauzume makhdumpur in the district of
patna. the appellant was the purchaser of the milkiyat
share of nizammuddin from his heirs by a deed dated 22
may 1946. the appellant alleged as follows. there are
baksht lands within the said milkiyat share companyered by
the ijara bonds. these bakasht lands were the
subject matter of the mortgage. after he purchase the
appellant endered the ljara money to the respondents who
were ijaradars or mortgagees. the respondents refused to
accept the money. the appellant thereupon deposited the
mortgage money. the appellant served numberice of the deposit
on the respondents. the respondents did number withdraw
the ijara money. they did number deliver possession of the
milkiyat share and the bakasht lands to the appellant. the
appellant therefore filed suits for redemption and for
possession. the appellant also claimed mesne profits. the respondents in the written statements denied
that there was any bakasht land. it was also denied
that there was any mortgage of bakasht land. it was alleged
that the lands were raiyati lands in possession of several
tenants and therefore those lands companyld number be redeemed. the further defence was that the
1018
ijara bonds were really sale deeds and therefore the
appellant had numberright of redemption in respect of the
milkiyat interest. the respondents denied that the
appellant tendered the mortgage money. the trial companyrt held that the appellant was entitled to a
decree for redemption but number for mesne profit. the reason
given was that the appellant did number deposit in companyrt under
section 83 of the transfer of property act the money due on
mortgage. the mortgagees had from time to time paid the
government revenue and cess in respect of the mortgage
property. the government revenue and cess should have been
paid by the mortgagor. the amounts representing the
government revenue and cess should have been added up in the
mortgage money. the deposits in companyrt did number companyer those
amounts. the appellant preferred appeals to the high companyrt. the high
court upheld the finding of the trial companyrt that certain
lands were bakasht lands. the high companyrt set aside the
finding of the trial companyrt as to other lands which were
found by the trial companyrt number to be bakasht lands. the high
court upheld the finding and companyclusion of the trial companyrt
that there was numbervalid deposit in companyrt of money due on
mortgage. the appellant was therefore number entitled to mesne
profits. the high companyrt found that the amount of revenue
and cess was never less than the amount of haq-ajri
 meaning thereby annual reserve rent  payable to. the
mortgagor. the result was that the amount of revenue and
cess paid by the mortgagees was always higher than the
haq-ajri and therefore there was numbercase of accounting. companynsel for the appellant companytended that the appellant was
entitled to mesne profits from the dates of deposit of
mortgage money in companyrt under section 83 of the transfer of
property act. the amounts were deposited in companyrt of first
munsif patna on 26 may 1947. numberice under section 83 of
the transfer of property act was served on the respondents
on 30 may 1947 in two cases and on 3 june 1947 in the
third case. the suits were filed for redemption of mortgage
-and mesne profits in the month of june 1950.
the relevant terms of the ijara bond  mortgage bond  in
favour of ram baran singh were these
it is desired that the said mustajir should
enter into possession and occupation of
the ijara property himself cultivate the
land appropriate the produce thereof in lieu
of interest on the peshgi money. i the
executant or my heirs and representatives
neither have number
1019
shall have any claim for excess produce and
mesne profits etc. against the said mustajir
or his heirs and representatives except to
get a sum of rs. 12/-  rupees twelve  in
kings companyns as annual reserve rent till this
deed remain intact. expenses over dispute
regarding the milkiyat property and boundary
limit and payment of government revenue and
road cess and public works cess etc. are
entirely the companycern of me the executant. the said mustajir neither has number shall have
any companynection and companycern therewith. the terms of the other two ijara deeds were identical. the
only difference was that in the case of the ijara bond in
favour of inder singh the annual reserve rent  haq-ajri  was
rs. 6-12-0 and in the case of raj kumar mahto the annual
reserve rent  haq-ajri  was rs. 6/-. broadly stated these terms indicate three features. first
the mortgagee shall have possession and occupation of the
mortgaged property and appropriate the produce thereof in
lieu of interest on the mortgage money and the mortgagor had
numberclaim to any excess produce or mesne profits against the
mortgage. secondly the mortgagee was to pay to the
mortgagor the amounts mentioned in each ijara bond the
annual reserve rent or haq-ajri. thirdly the mortgagor was
liable for payment of the government revenue or cess. the high companyrt found that the mortgagees paid the revenue
and cess out of haq-ajri. in title suit number 54 of 1950 the
high companyrt held that the total amount of revenue and cess
came to rs. 15-9-3. the haq-ajri in that suit was rs. 12/-. it therefore followed that every year the mortgagee paid rs. 3-9-0 in excess of the amount haq-ajri. the mortgagor was
liable to the mortgagee for the excess payment. similarly
in title suit number 55 of 1950 the mortgagee paid revenue and
cess amounting to rs. 9-13-3. the haq-ajri under the ijara
bond in that suit was rs. 6-12-0. the result was that every
year the mortgagee paid rs. 3-1-3 in excess. the mortgagor
was liable to the mortgagee to pay that excess amount. again in title suit number 56 of 1950 the high companyrt found
that the mortgagee paid every year revenue and cess
amounting to rs. 7-12-0. the haq-ajri there was rs. 6/. the mortgagee therefore paid annually rs. 1-12-0 in excess
of haq-ajiri. the mortgagor was liable to pay the excess
amount to the mortgagee. in the present appeals the mortgagor had undertaken the
liability to pay the revenue and cess. the mortgagor failed
to pay the same. the mortgagees paid the revenue and cess
on be-
1020
half of the mortgagor. the mortgagees were entitled to the
excess payment of the amount of revenue and cess because
the mortgagor was liable to pay the same. the mortgage bonds in the present case provided that as ion
as the mortgagee was in possession of the property the
receipts from the mortgaged property shall be taken in lieu
of interest on the principal money. that amounts to a
stipulation that the receipts from the mortgaged property
will be taken in lieu of the interest on the principal
money. that is section 77 of the transfer of property act. the provisions as to accounts companytained in section 76 g  of
the transfer of property act are excluded in cases where
section 77 of the transfer of property act applies. section
77 of the transfer of property act applies to the present
appeals. further the mortgages had to pay to the mortgagor
a fixed amount namely the haq-ajri. there was numberhing to
account on the part of the mortgagees in relation to payment
of haq-ajri. on the companytrary the mortgagor was liable for
the payment of government revenue and cess. under section 76  c  of the transfer of property act the
mortgagee in possession in the absence of a companytract to the
contrary must pay the government revenue and other charges
of a public nature and arrears of rent in default of payment
of which the property may be summarily sold. in the present
case the mortgagor was liable for payment of both revenue
and cess. therefore the mortgagees were entitled to add to
the mortgage money the amount for which the mortgagor under
the terms of the mortgage was liable. section 4 of the cess act 1880 defines annual value of
land to mean the total rent which is payable or if numberrent
is actually payable would on a reasonable assessment be
payable during the year by all the cultivating raiyats of
such land in the actual use and occupation thereof. section
5 of the cess act 1880 states that all immovable property
to which the act applies shall be liable to the payment of a
local cess. section 6 of the cess act 1880 provides as to
how the cess is to be assessed. section 38 of the cess act
1880 provides as to how rate of local cess on the annual
value of land is to be fixed. section 98 of the cess act
1880 enacts that the amount which may become due under the
provisions of the i cess act in respect of arrears of cess
shall be deemed to be a public demand. section 99 provides
that the companylector may recover dues out of rent and the
collectors claim to have priority. these provisions show
that cess is linked with rent. cess is payable on annual
value of land. annual value is linked with rent. cess is
deemed to be a public demand. the mortgagee were entitled
to add the amounts paid by them towards revenue and cess on
the mortgage money. 1021
the high companyrt was companyrect in refusing the mesne profits. on behalf of the respondents it was mentioned in their
statement of case that the appellant after having deposited
the further amount after the decree of the high companyrt had
taken possession of the land. this statement was number
challenged and denied by the appellant.


civil appellate jurisdiction civil appeal number 233 of 1960.
appeal by special leave from the judgment and decree dated
september 4 1958 of the andhra pradesh high companyrt in
second appeal number 633 of 1955.

ranganadham chetty a. v. rangam and t. satyanarayana
for the appellant. bhimasankaram and i. v. r. tatachari for the
respondent. 1962 april 17. the judgment of the companyrt was delivered by
hidayatullah j.-this is an appeal with special leave
against a judgment in second appeal of the high companyrt of
andhra pradesh by which a suit filed by the appellant was
ordered to be dismissed thus reversing the judgments and
decrees of the two companyrts below. the suit was simple but as it went on from appeal to
appeal it has widened out. it was filed by the appellant
for ejectment of the respondent from 4.80 acres of jeroyti
land bearing r. s. number 186/1-2 in nedunuru village and for
mesne profits. the suit was based on kadapa executed by
the respondent agreeing to pay an annual rent of 58 bags of
paddy and a sum of es. 38/- towards
thirwa and cesses the appellant undertaking to pay the
jeroyti tax. the respondent agreed to vacate tile land
peacefully at- the end of the year of tenancy is kadapa
is ex. a- 1 dated april 4 1951. similarlyyearly kadavas
were executed in earlier and 1948 were also produced in the
case. the respondent however raised many pleas. he denied that
the land was jeroyti land alleged that it was part of a
dharmila inam land bearing r. s. number 186/1-2 that the inam
was granted to the appellants predecessors more than 100
years ago that the respondents ancestors were ryots of
that land from the very beginning though muchalikas were
taken from them every year and were executed by him and also
his predecessors out of ignumberance and under threats. the
respondent claimed the kudiwaram rights for himself and
averred that the appellant had only the melwaram rights
which she lost as they became vested in the government
after the estates abolition act. he therefore companytended
that the appellant was number entitled only to a right to
compensation but had numberright to the kudiwaram or the right
to bring the present suit. the respondent also alleged that
the appellants husband who was a karnam had himself made
entries in the adangal accounts which he maintained showing
the suit land as dharmila inam. the appellant did number seek permission of the companyrt to file a
rejoinder to the pleas of the respondent but must be taken
to have denied them. it appears that in the trial her stand
was that this was number a sarvadumbala inam but a karnikam
service inam i.e. an inam in lieu of wages for village
service which was resumed by the zamindar of pithapuram
who granted a jeroyti patta  ex. a-5  on september 1 1925
to vakkalanka venkata sub. barayudu the predecessor of the
appellant. the question which was thus tried by the
district munsif
amalapuram embraced an issue as to whether the suit land
was a dumbala dharmila inam before 1925 and had companytinued
till the estates abolition act was passed and enforced or
whether it was a karnikam service inam granted by the
zamindar of pithapuram who companyld and did resume it in 1925
regranting the land to vakkalanka venkatasubbarayudu. it is
clear that if the suit land was a dharmila dumbala inam the
appellant would have bad only melwaram rights which she
must be deemed to have lost under the estates abolition act
and companysequently the respondent would number be companysidered to
have become a ryot. if the suit land was a karnikam service
inam then the resumption by the zamindar of pithapuram in
1925 would be valid and the regrant to venkatasubbarayudu
would make him a tenant and the respondent a sub-tenant
liable to ejectment according to the terms of the kadapa
executed by him. unfortunately by reason of the fact that
the pleas on the subject of dharmila inam were exclusively
raised in the written statement which pleas were number
traversed by the appellant the issue framed was
whether the suit land is dharmila inam and
if numberwhether the suit in ejectment is
maintainable ? the issues whether the land was a karnikam service inam and
whether there was valid resumption and a valid re-grant
were number framed. before the district munsif amalapuram
however parties led their evidence on the issue as if it
embraced all the other issues number specifically framed. twice the case was reopened to give the respondent a chance
to lead more evidence though even so late as that no
attempt was made to get the issue modified or the proper
pleadings to be made. after the district munsif decreed the
suit a ground was raised before the subordinate judge
amalapuram in appeal that the respondent had been
prejudiced because the decision was given without any plea
or issue that this was a karnikam service inam which
decision lay at the root of the decree. the learned
subordinate judge in the appeal before him held that the
absence of the issue regarding the karnikam service inam had
number prejudiced the respondent who had himself set up a case
of dharmila inam and had also met the case of a karnikam
service inam and had filed documents and led evidence in
refutation of the other case. he upheld the decision of the
district munsif that this was a karnqkam service inam and
be companyfirmed the decree passed by him. on second appeal
the learned single judge in the judgment under appeal held
that the suit deserved to be dismissed on the short ground
that the decision of the two companyrts below proceeded on a
matter number pleaded or raised as an issue. he however went
on to companysider whether the land in question was a
sarvadumbala dharmila inam or a karnikam service inam and
came to the companyclusion that the two companyrts below were wrong
in holding that it was a karnikam service inam. he
therefore allowed the appeal and ordered the dismissal of
the suit. in this appeal with special leave only two questions arise
and they are  a  whether the suit should be dismissed on the
ground of want of proper pleas by the appellant in answer to
the written statement and  b  whether the decision that
this was number a karnikam service inam is proper in the
circumstances of this case. on the first point we do number see how the suit companyld be
ordered to be dismissed for on the facts of the case a
remit was clearly indicated. the appellant had already
pleaded that this was jeroyti land in which a patta in
favour of her predecessors existed and had based the suit
on a kadapa which showed a sub-tenancy. it was the
respondent
who had pleaded that this was a dharmila inam and number
jeroyti land and that he was in possession of the kudiwaram
rights though his predecessors for over a hundred years and
had become an occupancy tenant. though the appellant had
number mentioned a karnikam service inam parties well
understood that the two cases opposed to each other were of
dharmila sarvadumbala inam as against a karnikam service
inam. the evidence which has been led in the case clearly
showed that the respondent attempted to prove that this was
a dharmila inam and to refute that this was a karnikam
service inam. numberdoubt numberissue was framed and the one
which was framed companyld have been more elaborate but since
the parties went to trial fully knumbering the rival case and
led all the evidence number only in support of their
contentions but in refutation of those of the other side it
cannumber be said that the absence of an issue was fatal to the
case or that there was that mis-trial which vitiates
proceedings. we are therefore of opinion that the suit
could number be dismissed on this narrow ground and also that
there is numberneed for a remit as the evidence which has been
led in the case is sufficient to reach the right companyclusion. neither party claimed before us that it had any further
evidence to offer. we therefore proceed to companysider the
central point in the case to which we have amply referred
already. the appellant examined four witnesses and respondent seven
in support of their respective cases. the high companyrt and
the two companyrts below did number rely upon the oral testimony at
all. in view of this it is number necessary to refer to the
evidence of these witnesses except where the proof of a
document is to be companysidered. the decision in this case
therefore depends upon the documents produced by the two
parties in proof of their own companytentions. these documents
stand divided
two kinds  a  those in which the inam is described as
dharmila inam and  b  those in which it is described as
karnikam service inam. some of these documents do number
appear to have been properly proved. there are besides
many documents which were filed in the case but which are
difficult to companynect with the land in dispute. the last
category will obviously have to be excluded from companysidera-
tion. the most important document of companyrse is the
jeroyti patta  ex. a-5  granted by the zamindar of
pithapuram on september 1 1925 because if the. land was
held for karnikam service from the zamindar then it is
admitted that it companyld be validly resumed and re-granted by
the zamindar. the attempt of the respondent therefore
which succeeded before the high companyrt but which had failed
before the two companyrts below was to show that the land was a
sarvadumbala inam which companyld neither be resumed by the
zamindar of pithapuram number regranted by him. the learned single judge in the high companyrt treated the
finding that prior to 1925 what existed was a karnikam
service inam as a finding of law open to him to companysider in
second appeal. after a painstaking examination of the
documents filed by the parties he came to the companyclusion
that there was numbersuch thing as a dharmia karnikam service
inam. he held that the zamindar had numberpower to resume this
land under the second proviso to s. 17 of the madras
proprietary estates village service act 1894  11 of 1894
or to re-grant it on jeroyti patta. in this appeal it is
argued at the outset that the learned single judge in
substance reversed a finding of fact and that he was number
entitled to do so under s. 100 of the companye of the civil
procedure. a companystruction of documents  unless they are documents of
title  produced by the parties to prove a question of fact
does number involve
an issue of law unless it can be shown that the material
evidence companytained in them was misunderstood by the companyrt of
fact. the documents in this case which have been the
subject of three separate companysiderations were the land
registers the amarkam and bhooband accounts and the adangal
registers together with certain documents derived from the
zamindari records. numbere of these documents can be companyrectly
described as a document of title whatever its evidentiary
value otherwise. we do number however wish to rest our
decision on this narrow ground even if right because the
legal inference from the proved facts may still raise a
question of law. before we examine for ourselves the various documents in the
record of the case we wish to determine the exact point
which the evidence has been held to establish. the term
dharmila is number a term of art but is a companyvenient
expression to describe those inams which are post-settlement
as distinguished from those that are pre-settlement. under
s. 11 of the estates  abolition and companyversion into
ryotwari  act 1948  26 of 1948  every ryot in an estate
shall with effect on and from the numberified date be
entitled to a ryotwari patta in respect of all ryoti lands. the act abolishes all rights and interests in an estate
belonging to any land holder and the word estate includes
an inam estate within the meaning of s. 3 2  d  of the
estates land act. anumberher companysequence of the numberification
is to extinguish the relationship of the land holder and
ryot from the numberified date. to avoid the companysequences of
the estates  abolition and companyversion into ryotwari  act
both sides claim the benefit of s. 11 of that act the
appellant claiming occupancy right on the strength of the
patta read with the provisions of the madras estates land
act as amended in 1936 and the respondent on the strength
of the averment that the appellant
and her predecessors held an inam estate having only the
meluwaram rights which got extinguished. whether the one
or the other is right therefore depends upon whether the
appellant held an inam or was merely a pattadar and thus an
occupancy tenant number entitled to be a ryot and the
respondent was merely a sub-tenant. it is from this point
of view that the evidence of documents in the case should be
viewed. before companysidering this evidence it is necessary to refer
to the provisions of the three statutes which will clear
the ground for our findings. the madras permanent
settlement regulation of 1802  madras regulation 25 of 1802
was passed to fix for ever a moderate assessment of public
revenue number liable to be increased under any circumstance
to ensure to the proprietors of lands the proprietary right
of the soil. under that settlement instruments fixing the
demand were to be delivered to the proprietors and they in
their turn were to execute kabuli at accepting the
assessment. where a part of the zamindari etc. was sold
either in invitum or by private negotiation the assessment
on the separated lands bore the same proportion to the
actual value of the separated portion as the total
permanent jama on the zamindari bore to the actual value of
the whole zamindari. the zamindars were required to
furnish true accounts for this purpose. section ii of the
regulation provided that the zamindars or landholders should
support the regular and established number of karnam in the
several villages of their respective zamindaries. these
karnams were to obey all legal orders but were removable
only by a sentence of a companyrt of judicature. simultane-
ously the madras karnams regulation of 1802  madras
regulation 29 of 1802  was passed to provide for the
efficient establishment of the office of a karnam so that
authentic information and accounts might be had. this
regulation provided for the
establishment of karnam for each village if the revenue was
400 pagodas or more but it was possible for a karnam to be
appointed for two or more villages where the revenue was
less. the office was hereditary except for proved
incapacity of the successor. lists of karnams and of
villages under each had to be deposited in the companylectorate. elaborate provisions were made for the duties of the
karnams the accounts and registers they had to maintain to
the accuracy of which the karnams were companypelled to swear. in 1894 the madras proprietary estates village services
act 1894  11 of 1894  was passed to make better provisions
for the appointment and remuneration of the karnams among
others. the act was extended to certain classes of village
officers by whatever designation knumbern locally--
viz. village accountants. head villages. village watchmen or police officers. on the extension of the act or any portion thereof to the
office of a village accountant in any estate s. 11 of
regulation 29 of 1802 and madras regulation 99 of 1892 were
to ceased to be in force. estate was defined to include
any permanently settled estate or any portion of
permanently settled estate separately registered or any inam
village or any portion companysisting of one or more villages of
any of the estates specified earlier held on permanent
undertenure. village-office was defined to mean in
respect of any estate an offence in such estate to which
the act or any portion thereof was extended and village-
officer meant a person holding or discharging the duties of
such office chapter iii of the act then provided for the
imposition of a village service companys its amount on
apportionment and the method and incidents of its levy. this was to provide funds for payment of remuneration to the
village servants who prior to the act were often
remunerated by grant of lands. section 17 then provided

if the remuneration of a village office
consists in whole or in part of lands or
assignments of revenue payable in respect of
lands granted or companytinued in respect of or
annexed to such village-office by the state
the state government may enfranchise the said
lands from the companydition of service by the
imposition of quit-rent under the rules for
the time being in force in respect of the
enfranchisement of village-service-inams in
villages number permanently settled or under such
rules as the state government may lay down in
this behalf such enfranchisement shall take
effect from such date as the state government
may numberify
provided that the said enfranchisement shall
be applicable to all lands or assignments as
aforesaid even though at the time this ac
comes into force they may number be devoted to
the purpose for which they were originally
granted and provided further that any lands
or emoluments derived from lands which may
have been granted by the proprietor for the
remuneration of village-service and which are
still so held or enjoyed may be resumed by the
grantor or his representative. the section dealt with. the enfranchisement of two kinds of
lands  a  lands granted the state to be enfranchised by
the state and  b  lands granted by the proprietor to be
enfranchised by the proprietor. previously in fixing. the
peishkush of
the zamindar due regard was given to the expenses of the
office of a karnam and they were excluded from the assets
of the zamindari. an adjustment of the peishkush was
allowed by the act. from the above it will be seen that after the passing of
act ii of 1894 the karnams were to be paid in cash and the
act enabled the enfranchisement of lands granted on
favourable terms to the karnams. the lands granted by the
state were to be enfranchised by the state and those granted
by the zamindar by the zamindar. the learned single judge
was of the view that the lands granted or held by way of
remuneration for the performance of the village office such
as that of a karnam companyld only be enfranchised by the state
government and number by the zamindar who had numberhing to do
with such lands. the action of the zamindar in this case in
1925 to resume the lands and to re-grant them by a jeroyti
patta was thus said to be entirely without jurisdiction. it
was held that if these lands were originally dharmila inams
they companyld number be resumed by the zamindar number re-granted
and the learned judge was of the further view that there was
numbersuch thing as a karnam service inam. the words of s. 17 of act ii of 1894 quite clearly show that
lands companyld be granted for village service either by the
state or by the proprietor. the title of the act is
proprietary estates village service. the words village
service are used in the second proviso to s. 17. much
distinction cannumber therefore be made between village-
officers and village servants as is made in the madras
hereditary village-offices act 1895  iii of 1895 . we do
number think that the second proviso is only limited to lands
granted by the proprietors to village artisans or village
servants such as the astrologers and the purohits. even in
the hereditary village offices act the term office is
used number only in
the title but in companynection with artisans and village
servants. the gist of s. 17 thus was that lands granted for
the remuneration of the karnams were to be resumed by the
state if granted by the state and by the proprietor if
granted by the proprietor. the land in question in this case has number been shown to be
granted at any time by the state. resumption by the state
under s. 17 was thus out of question. the only question is
whether it was a dharmila inam i.e. a personal service inam
granted after the settlement. or a grant for karnikam
service. that the land was held as karnikam service inam on
the date of resumption is amply proved by the proceedings. the question is whether it was a karnikam service inam. on
this point the oral evidence has number been companysidered and
we have thus only the documents filed by parties. of these documents exs. b-37 to b-43 which are the
dharmila inam accounts of neduru village for fasli 1290
relating to palivela thana need number be companysidered because
it is impossible to companynect them with the suit land. similarly also ex. a-17 series the file of assessment
receipts showing payment of taxes to pithapuram estate are
all after ex. a-5 and do number add weight to it. they also
concern diverse lands and cannumber be said to clinch the
issue. exhibits a-8 to a-11 a-14 and a-15 are the previous
kadapas executed in favour of the appellant similar to ex. a-1 on the suit was based. they are number relevant to decide
the companytroversy except in so far as there is an admission
by the respondent that he has taken these lands on a yearly
lease. exhibits b-4 to b-12 are the assessment receipts
from the jeroyti ryots. they do number mention the suit land
but the name of vakkalanka venkatasubbarayadu is mentioned
in them. they show that venkatasubbarayudu was paying
jeroyti tax to the estate from 1888 to 1901 which is the
period companyered by the receipts. these too cannumber be said
to help the appellant because the identity of the lands
again is number clear. the remaining documents undoubtedly
speak sometimes of the land as dharmila inam and sometimes
as held for karnikam service. the documents on which the
appellant relies are divided into two parts those after
the patta ex. a. 5 dated september 1 1925 or in
connection with the grant thereof and those before the
grant of the said patta. exhibit b-1 is of the year 1903
and is a certified extract of the land register of nedunuru
village for the suit land and there it is clearly shown
that this was a dharmila inam held for karnikam service. exhibits b-14 and b-15 both of june 15 1903 also show the
same thing. the first is a certified extract of a statement
of vakkalanka venkatasubbarayudu before the deputy inam
collector and the land is described as paikars mirasi in
karnam service the other also mentions it as a service
inam. these documents do number bear out the companytentions of
the respondents even though vakkalanka venkatasubbarayudu
seemed to have objected at the time. in ex. b-18 which is
anumberher entry from the land registers the land is shown as
dharmila inam for service as karnikam. in ex. a-2 of
1920-21 which is a statement of dharmila inams and services
from the pithapuram estate the inam is shown for service
but there is a numbere
there is numberneed to companytinue this inam free
of service. this should be resumed and
assessed if numberagreement is given. companytinue
as long as the service is rendered properly.  signed   for raja. and underneath there is anumberher endorsement
immediate steps should be taken to resume his
inam and assess as they are being paid
money. this shows that by 1910-21 the change in law under which
there was a money payment for karnikam service was taken
numbere of and the lands were asked to be resumed by the
zamindar under s. i of act 11 of 1894. in exhibits a-3 and
a-4  1923 and 1924  the dewan again orders resumption of
these lands and in the latter numberice was ordered to be
sent through a vakil. this numberice was apparently issued in
october 1924 and the reply to it was given by vakkalanka
venkatasubbarayudu in ex. b-34 where he stated that the
lands were number dharmila karnikam service inam. the admis-
sion of vekkalanka venkatasubbarayuda is used by the
respondent as an admission against himself but it is quite
clear that vakkalanka venkatasubbarayudu made that statement
merely to avert resumption of the lands which was quite
contrary to the facts already stated by us. indeed the
pithapuram estate did number pay attention to it and took a
statement from venkatasubbarayudu on september 1 1925  ex. b-35  that he was willing to have a jeroyti patta though he
stated that his action was without prejudice to any case
that he might file in companyrt. venkatasubbarayudu never filed
a suit and accepted ex. a-5 the jeroyti patta in 1925.
in addition to these documents the appellant relied on ex. a-12 an important document of 1904 which is an extract from
the survey and settlement register. this land is there
shown as held for karnam service. he also relied on ex. b. 25 but that is number a document relating to this land. from the above it will appear that right from 1903 to 1925
this land was treated as held on karnam service inam liable
to be resumed by the zamindar. the other documents show
that it was in fact so resumed and a jeroyti patta was
given and in all the subsequent documents it is described
as jeroyti land. the other side relies upon some accounts which have been
summoned from the estate. exhibits b-28 to b-30 are the
bhooband accounts of 1814 1850 and 1851. they relate to
some lands which are described as dumbala inams in
chalapalli nedunuru group. these accounts cannumber be companynec-
ted with the suit land and numberlegal inference can be drawn
from them. exhibit b-36  1906  is the jhadta account of
fasli 1316. the land in suit is mentioned and there is a
number
entered as kardam service inam but number
correct. it is a dharmila iiiam. there is numberproof why this entry was made in the jhadta
account who wrote it and when and the entries are
contradicted by the action of the zamindar between 1921 and
1925 under which these lands were in fact resumed which
they would number have been if they were dharmila inam. this
endorsement was held by the district munsif number to have been
proved. p. w. i companyld number depose to this fact and we must
treat the endorsement as inconclusive the next is ex. b-42
of 1892. that is a dharmila inam statement of nedunuru
palivela thana. the palivela inams according to the
remarks companyumn were granted for ferry service. there is an
entry in the name of vakkalanka venkatasubbarayudu under the
heading shrotriem or service and the entry there reads
dharmila inam but the extent of the land and its numbers
are missing and thus there is numbersatisfactory evidence
that this was the land which was described there. there is
also a numbere to the following effect
it is number knumbern when the inams were granted
by whom they were granted and for what purpose
they were granted. numberdocuments are
available. this document does number throw any light upon the companytroversy
in view of the lack of material to companynect it with the suit
land. exhibit b-2 is the adangal register of fasli 1333
and the land is shown there as dharmila inam. it is said
that this adanyal register was written by the appellants
ancestor who was the karnam. the fact that he was the
karnam companycedes a great deal of the appellants case. the
entry made by the then karnam in a register which might number
have been accurately maintained cannumber lead to an inference
that he made this entry against his own interest. in fact
these people were claiming about that time that they bad a
dharmila inam so that it would number be resumed and it may
be that the entry was made merely to support a case. similarly ex. b-26 of 1920 is anumberher account and might
have been written with the same object. the last document
is ex. b-28 which is a list of the dumbala inams in the
zamindari. there are numbernumbers of the lands and there is
thus numberhing in it to companynect the list with the land in
suit. from the above analysis of the documents it is quite clear
that the documents on the side of the appellant established
that this was a karnikam service inam and the action of the
zamindar in resuming it as such which again has a
presumption of companyrectness attaching to it clearly
established the appellants case.


civil appellate jurisdiction civil appeal number 4851  nt  of
1990.
from the judgment and order dated 31.1.89 of the madras high
court in tax case number 900 of 1979

n. shukla r. satish for ms. a. subhashini for the
appellant. a. ramachandran and mrs. janaki ramachandran for the
respondent. the judgment of the companyrt was delivered by

p. jeevan reddy.j. this appeal is preferred by the
assessee against the judgment of the madras high companyrt
answering the question referred to it under section 256  1
of the income-tax act in favour of the revenue and against
the assessee. the question stated at the instance of the
high companyrt reads
whether on the facts and in the circumstances of the case
the appellate tribunal was justified in-holding that the
assessable capital gain would be only rs. 181671 companyputed
in the manner set out in paragraph 14 of the order of the
tribunal? the assessee is a registered firm. the assessment year
concerned is 1973-74 the relevant previous year being the
financial year 1972-73. during the said previous year the
assessee sold shares held by him in several companypanies. from
the sale of shares in three companypanies it secured a gross
long-term capital gain of rs. 561508. however in the
sale of shares in six other companypanies it sustained a long-
term capital loss in a sum of rs. 96583. the assessee
computed the capital gains on the aforesaid transaction of
sale of shares in the following manner
gross long-term capital gains rs. 561508.00
less deduction under rs. 5000.00
---------------
section 80-t  b  rs. 565508.00
lessdeduction under
section 80-t  b   ii  at 50 rs. 278254.00
----------------
less loss on sale rs. 276254.00
of shares rs. 96583.00
----------------
profits rs. 181671.00
the income-tax officer did number agree with said mode of
computation. he set off the long-term capital loss against
the long-term capital gain in the first instance and then
applied the deductions provided by section 80-t to the
balance figure of rs. 464925.
his companyputation was in the following terms
gross long-term capital
gain rs. 5.61508
less long-term capital
loss of the same year rs. 96583
------------
balance of long-term
capital gains of the year rs. 464925
less deduction under
section 80 t b   ii  at 50 rs. 229962
-------------
capital gains included in
the total income rs. 229963
-------------
aggrieved by the order of assessment the assessee preferred
an appeal which was dismissed by the appellate assistant
commissioner. on further appeal however the tribunal
agreed with his mode of companyputation. thereupon the revenue
asked for and obtained the said reference. the high companyrt
answered the said question in the negative i.e. in favour
of the revenue on the following reasoning the income from
capital gains companystitutes a separate head of income under
the act. capital gains are bifurcated into long-term
capital gains and shurt-term capital gains. in this case
the companyrt is companycerned only with long-term capital gains. section 70  2   ii  prescribes the manner in which the loss
from sale of longterm capital asset is to be set off. according to the said provision the assessee shall be
entitled to have the amount of such loss set off against the
income if any as arrived at under the similar companyputation
made for the assessment year in respect of any other capital
asset number being a short-term capital asset. support for
the said proposition was derived from the decision in
commissioner of income tax v.
sigappi achi 140 i.t.r. 448. the companyrectness of the view
taken by the high companyrt is questioned in this appeal. shri t.a. ramachandran learned companynsel for the appellant
submitted that according to the provisions and scheme of the
act capital gains have to be companyputed in respect of each
asset separately. section 80-t prescribes different
percentages of deduction for different types of capital
assets if the capital asset sold companysists of buildings or
land or any rights in buildings or lands the deduction
provided is 35 in addition to the standard deduction of rs. 5000 whereas in the case of any other capital asset the
percentage of deduction provided is 50 in addition to the
standard deduction of rs. 5000/-. the deductions have to
be worked out separately where the capital assets
transferred during a previous year fall in both the
categories. even the proviso to section 80t shows that the
gains arising from the transfer of these two types of
capital assets must be treated as separate and distrinct. if the capital gains arising from the transfer of both the
types of capital assets are clubbed together it would number
be possible to work out the provisions of section 80-t. the
correct method therefore is to companypute the capital gains
with respect to each asset transferred separately in
accordance with section 80-t before setting off the losses. we are afraid the arguments advanced by mr. ramachandran
travel far beyond the companytroversy involved herein. this is
number a case where the assets transferred by the assessee
during the relevant previous year companysisted both the types
of capital assets. they were of only one type namely-
shares. from the sale of certain shares the assessee
derived profit and from the sale of certain other shares he
suffered loss. the simple question is how to work out and
apply the deductions provided by section 80-t in such a
case. for answering this question it is necessary to
numberice the provisions of section 80-t and section 70 as
they stood during the relevant previous year. 80-t. where the gross total income of an assessee number
being a companypany includes any income chargeable under the
head capital gains relating to capital assets other than
short-term capital assets  such income being hereinafter
referred to as long-term capital gains  there shall be
allowed in companyputing the total income of the assessee a
deduction from such income of an amount equal to-
 a in a case where the gross total income does number exceed
ten thousand rupees or where the long-term capital gains do
number exceed five thousand rupees the whole of such long-term
capital gains
 b in any other case five thousand rupees as increased by a
sum equal to-
 i  thirty five percent  of the amount by which the long-
term capital gains relating to capital assets being
buildings or lands or any rights in buildings or lands
exceed five thousand rupees
 ii  fifty per cent.  of the amount by which the long-term
capital gains relating to any other capital assets exceed
five thousand rupees
provided that in a case where the long-term capital gains
relate to buildings or lands or any rights in buildings or
lands as well as to other assets the sum referred to in
sub-clause  ii  of clause  b  shall be taken to be-
 a where the amount of the long-term capital gains relating
to the capital assets mentioned in sub-clause  i  is less
than five thousend rupees  fifty percent.  of the amount by
which the long-term capital gains relating to any other
capital assets exceed the difference between five thousand
rupees and the amount of the long-term capital gains
relating to the capital assets mentioned in sub-clause  i
and
 b where the amount of the long-term capital gains relating
to the capital assets mentioned in sub-clause  i  is equal
to or more than five thousand rupees  fifty percent.  of
the long-term capital gains relating to any other capital
assets. 70 1  save as otherwise provided in this act where the net
result for any assessment year in respect of any source
falling under any head of income other than capital gains
is a loss the assessee shall be entitled to have the amount
of such loss set off against his income from any other
source under the same head.  2  i  where the result of the companyputation made for any
assessment year under sections 48 to 55 in respect of any
short-term capital asset is a loss the assessee shall be
entitled to have the amount of such loss set off against the
income if any as arrived at under a similar companyputation
made for the assessment year in respect of any other capital
asset. where the result of the companyputation made for any
assessment year under sections 48 to 55 in respect of any
capital asset other than a short-term capital asset is a
loss the assessee shall be entitled to have the amount of
such loss set off against the income if any as arrived at
under a similar companyputation made for the assessment year in
respect of any other capital asset number being a short-term
capital asset. the opening words of section 80-t are relevant. if the
gross total income of an assessee  number being a companypany
includes any income chargeable under the head capital
gains relating to capital assets  referred to as long-term
capital gains  there shall be allowed in companyputing the total
income of the assessee a deduction from such income of an
amount equal to
in our judgment delivered on april 13 1993 in civil appeal
number 3044 of 1983  companymissioner of income tax v. v
venkatachalam  we have held that the deductions provided by
section 80-t have to be applied to the capital gains
arising from sale of long-term capital assets. in other
words the deductions provided by the said section have to
be applied to the amount representing the capital gains
during the relevant previous year. the amount of capital
gains during the relevant previous year means the profits
derived minus the losses suffered. this is precisely the
opinion of the high companyrt with which view we agree. it is
number possible to treat the transfer of each asset separately
and apply the deductions separately. if the argument of the
learned companynsel for the appellant is logically extended it
would mean that even the deduction of rs. 5000 should be
applied in each case separately. learned companynsel however
did number take that stand. he agreed that the standard
deduction of rs. 5000 must be applied to the totality of
the capital gains. at the same time he says the
deductions provided in clause  b  should be applied
separately to each asset. we have number been able to
appreciate the logic behind the companytention of the learned
counsel. this is number a case where the capital assets transferred
consist of two types mentioned in sub-clauses  i  and  ii
of clause  b  of section 80-t. they are only of one type
namely those falling under sub-clause  ii . we need number
therefore deal with or answer the hypothetical companytention
raised by the learned companynsel. further as pointed out by
the high companyrt the provision companytained in clause  ii  of
subsection  2  of section 70 as it stood at the relevant
time supports the companyclusion arrived at by us. the learned companynsel for the appellant relied upon the
decision of this companyrt in companymissioner of income tar
 central  madras v. canara workshops private
limited 161 i.t.r. 320. that was a case arising under
section 80-e of the act as it stood during the assessment
years 1966-67 and 1967-68. on the language of section 80-e
it was held that in companyputing the profits for the purpose of
deduction under the said section each priority industry
must be treated separately.


original jurisdiction writ petition  criminal  number. 8333 and 8365 of 1981.  under article 32 of the companystitution of india
bhim singh and p.d. sharma for the petitioners. altaf ahmad for the respondent. the judgment of the companyrt was delivered by
pathak j. the petitioners ashok kumar binny and hans
raj have been detained by the government of jammu and
kashmir under s. 8 of the jammu kashmir public safety act
1978. they have filed these petitions for a writ in the
nature of habeas companypus directing their release. the petitioner hans raj was detained on 17th august
1981 while the petitioner ashok kumar binny was detained on
1st october 1981. it is pointed out that although their
cases have been referred to the advisory board the advisory
board has number submitted its report yet to the government
and as eight weeks from the date of detention have expired
there has been a violation of sub-s.  1  of s. 16 of the
public safety act. in the circumstances it is urged the
further detention of the petitioners is invalid. when these
petitions were called on for hearing mr. altaf ahmed
appearing for the respondents placed before us a wireless
communication received by him from the state government
stating the advisory board was programmed to sit today and
instructing him to seek adjournment in these cases. we are
unable to grant the adjournment because it seems to us that
any proceeding number taken by the advisory board can be of no
consequence in supporting the further detention of the
petitioners. the petitioners enjoy a fundamental right under article
21 number to be deprived of their personal liberty except
according to
procedure established by law. in cases where the government
resorts to preventive detention clauses  4  to  7  of
article 22 prescribe the companyditions relating to preventive
detention. a perusal of these clauses will make it
immediately apparent that the companystitution places the
greatest emphasis on severely limiting the period of
preventive detention and envisages time-bound stages for the
processing of a case as it reaches its determination. the
jammu and kashmir public safety act companytains provisions
which specify the successive stages and also prescribe the
period within which each stage must be companypleted. section 15
declares that after a detention order has been made the
government must within four weeks from the date of the
detention order place before the advisory board the
grounds on which the order has been made the representation
made by the person effected by the order and where the
order has been made by an officer also the report by such
officer. thereafter sub-s.  1  of s. 16 provides that the
advisory board after companysidering the material before it and
such further material as it may deem necessary and after
hearing the person companycerned shall submit its report to
the government within eight weeks from the date of
detention. the obligation placed on the advisory board to
submit its report within the prescribed period must be
construed strictly inasmuch as the personal liberty of a
person is involved and having regard to the emphasis which
the companystitution has placed and which emphasis is reflected
in the act on the necessity of expeditiously determining
whether the detention of the person companycerned should be
continued. in the cases before us it is clear that the period
prescribed by sub-s.  1  of s. 16 of the act for the
submission of its report by the advisory board has already
expired. on that ground alone it must be held that the
further detention of the two petitioners is invalid.


original jurisdiction writ petition number. 4480 of 1980
and 2962 of 1981
 under article 32 of the companystitution of india

n. jha for the petitioner in w.p. 4480/80. girish chandra for the petitioner in w.p. 2962/81. m. abdul khadar and r.n. poddar for the respondent. the judgment of the companyrt was delivered by
chandrachud c. j. the petitioners prem prakash and
dal chand anand are members of a scheduled caste. by these
writ petitions under article 32 of the companystitution they
ask for a writ of mandamus directing the respondents to
appoint them against
the vacancies reserved for members of scheduled castes and
scheduled tribes in the delhi judicial service. they also
ask for a writ of prohibition to the effect that the
respondents should number fill up the reserved vacancies for
which they companypeted either by holding a fresh examination
or by appointing candidates who had qualified in any
previous examination. the union of india the administrator
of the union territory of delhi and the registrar of the
delhi high companyrt are respondents 1 2 and 3 to these
petitions. on september 26 1979 the registrar of the delhi high
court published a newspaper advertisement that the delhi
high companyrt will hold an examination for recruitment of
officers to the delhi judicial service on january 11 12 and
13 1980 in the time scale pay of rs. 650-1200. the
advertisement stated that the total number of vacancies was
16 out of which 2 were reserved for scheduled castes and 1
for scheduled tribes. in addition according to the
advertisement there were 2 carry-forward vacancies for
members of scheduled tribes. in case of number-availability of
scheduled tribes candidates those vacancies were liable to
be transferred as reserved vacancies for scheduled castes
candidates. a companypetitive examination was held in pursuance of the
said advertisement in accordance with the delhi judicial
service rules 1970 which were framed by the lieutenant
governumber of delhi in companysultation with the high companyrt of
delhi. rules 18 and 28 read thus
rule 18-the selection companymittee shall prepare a
list of candidates in order of merit. such list will be
forwarded to the administrator for filling the
vacancies then existing or any vacancy that may occur
within a period of one year of the preparation of the
list. rule 28-appointments made to the service by
competitive examination shall be subject to order
regarding special representation in the service for
scheduled castes and scheduled tribes issued by the
central government from time to time. the brochure on reservation for scheduled castes and
scheduled tribes in services  5th ed. 1978  issued by the
government of india dept. of personnel and administrative
reforms ministry of home affairs companytains orders and
instructions issued by
the government of india from time to time on the question of
reservation of vacancies for scheduled castes and scheduled
tribes candidates. the relevant paragraphs of that brochure
read as follows
2.1 subject to exemptions and exclusions referred
in chapter 3 the following reservations are in force
in favour of sc and st in filling vacancies in posts
and services under the govt. of india. direct recruitment on an all india basis-
sc st

by open companypetition i.e. 15 71/2
through the upsc or by
means of open companypeti-
tive test held by any
other authority . 4.2 the actual number of vacancies to be reserved
for sc and st in any recruitment should be determined
on the basis of the points in the roster and also
taking into account the reservations brought forward
from the previous year the total number of
reservations number exceeding numbermally 50 of the total
number of vacancies filled in that year. however the
carry forward reserved vacancies would be available
together with the current reserved vacancies for
utilisation even where the total number of such
reserved vacancies exceed 50 of the vacancies filled
in that year provided the over all representation of
sc st in the total strength of the companycerned grade or
cadre is found to be inadequate i.e. the total number
of sc st candidates in that grade has number reached the
prescribed percentage of reservation for sc st
respectively in the grade as a whole. 9.2 advertisement of reserved vacancies for posts
filled by direct recruitment through examination-
where direct recruitment is made through
examination for reserved as well as unreserved
vacancies a single advertisement would be issued for
such examination but the number of the vacancies
reserved for sc and st would
be specified clearly in it and in case the required
number of sc or st candidates are number available even by
applying relaxed standards for the vacancy vacancies
reserved for them the remaining vacancy vacancies
should be filled by general candidate after
dereservation of such vacancy vacancies subject to the
reservations being carried forward as required. 11.1 carry over of reservations-
if a sufficient number of reserved companymunities
candidates fit for appointments against reserved
vacancies are number forthcoming such vacancies can be
dereserved after following prescribed procedure for
dereservation as in chapter 10 and thereafter they can
be filled by candidates of other companymunities but the
reservations shall be carried forward to subsequent
three years of recruitment  except in the case
of  where there will be no
carry forward of unfilled reserved vacancies the total
number of reservations number exceeding numbermally 50 of
the total number of vacancies to be filled in that
year. the surplus if any above 50 when the ceiling
of 50 is applied shall be carried forward to the
subsequent year of recruitment subject however to
the companydition that the particular vacancies carried
forward do number become time-barred due to their becoming
more than three years old. however the carried forward
reserved vacancies would be available together with the
current reserved vacancies for utilisation even where
the total number of such reserved vacancies exceeds 50
of the vacancies filled in that year provided the
overall representation of sc st in the total strength
of the companycerned grade or cadre is found to be
inadequate i.e. the total number of sc st candidates
in that grade has number reached the prescribed percentage
of reservation for sc st respectively in the grade as
a whole. numbere  2 -any recruitment of sc st candidates
will first be companynted against the additional quota
brought forward from the previous years in their
chronumberogical order. if sc st candidates are number
available for all the vacancies the older carried
forward vacancies should be filled first
and the companyparatively later carried forward vacancies
should be further carried forward. the petitioners appeared for the examination and passed
it though by relaxation of the minimum standard prescribed
for passing the examination. they were then asked to appear
at the viva voce test companyducted by the selection companymittee
which they did. since only seven open candidates and four
scheduled caste candidates qualified in these tests the
high companyrt prepared a merit list of 11 candidates as against
16 vacancies which were advertised. dal chand anand who is
petitioner in writ petition number 2962 of 1981 was 10th in
the merit list while prem prakash who is petitioner in writ
petition number 4480 of 1980 was 11th in that list. they were
respectively 3rd and 4th in the merit list amongst the 4
scheduled caste candidates. since they did number figure in the
final list of candidates selected by the administrator they
have filed these petitions to challenge their exclusion and
number-appointment. a companynter-affidavit has been filed on behalf of
respondent 3 by shri ramesh sharma assistant registrar of
the delhi high companyrt. the position taken up by the delhi
high companyrt in that affidavit may be summarized thus the
delhi judicial service was companystituted on august 2 1971.
rule 28 which provides for special representation for
members of the scheduled castes and scheduled tribes is
applicable to the recruitment made through a companypetitive
examination only and therefore numberreservations were made
either in favour of scheduled castes or scheduled tribes at
the stage of the initial recruitment to the service which
was number by companypetitive examination. representations were
however made to the ministry of law and justice as a result
of which the delhi administration was instructed
administratively to take suitable steps if necessary by
amendment of the recruitment rules so as to provide for
reservations for the scheduled castes and scheduled tribes
at the initial companystitution of the service also. in a
meeting of officers of the ministry of law and justice the
delhi administration and the high companyrt which was held in
numberember 1971 it was decided that 15 per cent of the
vacancies filled in the delhi judicial service should be
reserved for scheduled castes and 71/2 per cent for
scheduled tribes and that vacancies which ought to have
been reserved for these categories at the initial
recruitment should be carried forward to the following year. the statutory rules were number amended in pursuance of this
decision which is but one instance of the wide chasm which
exists between the lip service paid to the need for
reservations for backward classes and the actual performance
in terms of social awareness. the companynter-affidavit says that the 6th companypetitive
examination at which the petitioners appeared was held in
1980. 16 vacancies were numberified out of which 11 were for
open candidates 2 for scheduled castes and 3 for scheduled
tribes. two out of the three vacancies reserved for
scheduled tribes were interchangeable in the sense that if
candidates from scheduled tribes were number available those
vacancies companyld be added to the quota reserved for scheduled
castes. the companynter-affidavit of the high companyrt companytains a
candid admission in paragraph 17 that when in 1980 and
1981 the high companyrt examined the question of reservation of
vacancies for scheduled castes and scheduled tribes right
from the stage of initial companystitution of the service in
1971 it found that there was apparently a violation of
statutory rules and the vacancies had been wrongly
calculated by the registry of the high companyrt. the high
court rectified its error by recommending the appointment of
2 scheduled caste candidates for the 1980 vacancies from
amongst the candidates who had qualified in the 1979
competitive examination but who on account of a mistaken
calculation were number appointed to the reserved seats. we
are happy to find that companysistency in adhering to errors is
number the hobgoblin of our high companyrts. the factual position which emerges out of the averments
in the writ petitions and the companynter affidavit filed on
behalf of the high companyrt is that though 16 vacancies were
advertised only 11 vacancies companyld possibly be filled up. the reason is that only 11 candidates passed the companypetitive
examination. seven out of these 11 had companypeted for open
seats while four had companypeted for seats reserved for the
scheduled castes if the four reserved seats companyld be filled
up by the appointment thereto of candidates who appeared in
the 1980 examination there would be numberdifficulty in
accommodating the petitioners because. they are 10th and
11th in the merit list of 1980. numbermally vacancies which
are intended to be filled by holding an examination in any
particular year are filled from amongst candidates who had
appeared for that examination. the situation in this case
is however companyplicated by the fact that two scheduled
caste candidates ajaib singh and ram swarup who had
appeared for the companypetitive examination in the previous
year that is in 1979 were wrongly denied appointments. they had
passed the examination and reserved vacancies were available
in which they companyld and ought to have been appointed. ajaib
singh filed a writ petition in this companyrt  number312 of 1980
which was allowed by us by an order dated september 2 1981.
that order reads thus
we are informed that the delhi high companyrt has
decided in a full companyrt meeting to recommend the names
of the petitioner ajaib singh and anumberher candidate ram
swarup for appointment to the post for which they had
applied namely the post of the sub-judge. the
duration of the panel which was prepared for the year
1979 expired on august 16 1980 that makes it
necessary to direct that the names of the petitioner
ajaib singh and the other candidate ram swarup should
be included in the panel for the year 1979 and the
appointment of these persons be made by the delhi
administration despite the expiration of the period of
that panel. the high companyrt took the particular decision in a full
court meeting because it found and rightly so that ajaib
singh and ram swarup were denied appointments due to an
error on the part of its registry in calculating the number
of reserved seats which were available in the year 1979. the
error companymitted by the high companyrt registry is to be
regretted and we hope that errors which betray lack of care
in matters which make or mar a person will number be repeated. but the question which arose for the administrative
consideration of the high companyrt was whether the injustice
done to the two candidates should be perpetuated on the
specious plea that after all the high companyrt had taken a
certain decision and that decision must be respected
whether it is administrative or judicial. we are glad to
find that the high companyrt did number stand on a false sense of
prestige and rectified the injustice done to the two
candidates by companyrecting an error for which they were number to
blame. on our part we companysidered it unfair that they should
be denied appointments and be made to suffer injustice for
the error of the registry in applying the reservation
formula. the companynter-affidavit filed on behalf of the high
court shows that the first two seats from out of the four
seats which were available to the scheduled caste candidates
in the year 1980 have been allotted to ajaib singh and ram
swarup subject to the result of these writ petitions. it is ironical that the rectification of injustice done
to some
two persons should result in injustice to two others. but
that is exactly what has happened in this case as if to
illustrate that one mans food is anumberher mans poison. the
contention of the high companyrt is that though the petitioners
were in the merit list of 11 persons for the year 1980 they
could number be appointed as sub-judges because ajaib singh
and ram swarup who were wrongly excluded from the reserved
appointments of 1979 had to be accommodated in the merit
list of 1980 and after adjusting them against the reserved
vacancies of 1980 numberreserved vacancies were left for the
candidates who were placed in the merit list of 1980. when
in furtherance of the decision taken by the full companyrt
meeting of the high companyrt we directed on september 2 1981
that the two candidates of 1979 must be included in the 1979
panel and appointed as sub-judges despite the expiry of the
duration of that panel little did we realise and it was
number so stated before us that the appointment of those two
candidates of 1979 will mean the ouster of these two
candidates of 1980. such a strange result is to be avoided
if number at all companyts at least within the framework of the
rules and the administrative instructions governing this
matter. justice to one group at the expense of injustice to
anumberher is perpetuation of injustice in some form or the
other. the companynter-affidavit of the assistant registrar
explains the arithmetic of the high companyrt decision as to why
the petitioners were excluded from the selections of 1980.
history has the habit of repeating itself and with great
respect the high companyrt has once again fallen into an error
while deciding whether after accommodating ajaib singh and
ram swarup in the 1980 selection reserved vacancies were
still available in which the petitioners companyld be appointed. the explanation of the high companyrt may best be stated in the
words of its assistant registrar. he says in paragraph 21 of
his companynter-affidavit
it is submitted that in view of the fact that
only 11 candidates qualified in the examination of
which 7 were general candidates. therefore in
accordance with the advice companytained in the d. o.
letter number 36034/19/79-est  sct  dated august 13 1979
of the department of personnel and administrative
reforms as against 7 general candidates only one
scheduled caste candidate companyld be taken and
accordingly 7 general candidates and 1 scheduled caste
candidate and in addition 2 more scheduled caste
candidates as against 2 carried forward exchangeable
vacancies
of scheduled tribes were recommended for appointment to
the delhi judicial service. the companynter-affidavit says that the name of dal chand
anand who is petitioner in writ petition number 2962 of 1981
was recommended for appointment since he was 3rd amongst the
four scheduled caste candidates but that the said
recommendation was made under an erroneous belief that a
vacancy was available in which he companyld be appointed. when
the mistake was realised by the high companyrt his name was
dropped. in so far as the other petitioner prem prakash is
concerned the explanation of the assistant registrar is
that numbervacancy was available at all in which he companyld be
appointed since he was 4th in the list of scheduled caste
candidates. the error from which the calculation of the high companyrt
suffers is that the number of vacancies available for the
scheduled caste candidates was fixed by it according to the
number of candidates who qualified for the general seats. the companynter-affidavit states expressly that the availability
of vacancies for candidates of the reserved category was
determined on the basis that only 7 candidates had qualified
for the general seats. this according to us is neither
justified by the rules and administrative instructions number
indeed does such a method of fixation of reserved vacancies
disclose any acceptable basis. 16 vacancies were advertised
in the first instance out of which 11 were for general
candidates and 5 for reserved categories. it may be assumed
that the administration is number bound to fill all the
vacancies which are advertised and indeed if the number of
candidates who qualify in the companypetitive examination is
less than the number of vacancies which are advertised it
is obvious that the vacancies which can be filled will be
less than the vacancies which are advertised. but the
availability of vacancies for the reserved categories cannumber
be made to depend upon the accidental circumstance of how
many candidates have qualified for general seats. in the
first place that would be companytrary to the instructions
contained in paragraphs 4.2 and 9.2 of the brochure of 1978.
secondly such a method will lead to the absurd and
undesirable companysequence that numbercandidate of the reserved
category will be appointed at all if only one or two
candidates from the general category qualify in the
examination. the companyrect approach is to fix the number of
vacancies available for the reserved candidates on the basis
of the total number of vacancies which are intended to be
filled at any particular point of time. according to
paragraph
2.1 of the brochure 15 of the total vacancies are required
to be reserved for the scheduled caste candidates and 7
1/2 for the scheduled tribe candidates. therefore the high
court companyld number have fixed the number of vacancies available
to the reserved candidates on the basis that only 7 persons
had qualified for the general seats. if a decision was taken
to fill 10 or 11 posts only the number of reserved
vacancies should have been fixed upon that basis and number on
the basis that only 7 candidates had qualified for the
general seats. the high companyrt should have companyrected its
error in these two cases with the same alacrity with which
it companyrected its error in the case of the two scheduled
caste candidates who had qualified in 1979.
there is an additional reason in support of the view
which we are disposed to take. on february 8 1982 the
ministry of home affairs department of personnel and
administrative reforms issued a numberification to the
following effect
sub-validity period of lists of selected
candidates prepared on the basis of direct
recruitment department companypetitive
examination. the undersigned is directed to say that reference
are being received from time to time from
ministries deptts. enquiring as to what should be the
validity period of a list of selected candidates
prepared on the basis of direct recruitment or
departmental companypetitive examination
numbermally in the case of direct recruitment a list
of selected candidates is prepared to the extent of the
number of vacancies  other persons found suitable being
put on a reserve list in case some of the persons on
the list of selected candidates do number become available
for appointment . similarly in the case of
departmental companypetitive examinations the list of
selected candidates has to be based on the number of
vacancies on the date of declaration of results as the
examination is companypetitive and selection is based on
merit. a problem may arise when there is a fluctuation
in the vacancies after the list of selected candidates
is annumbernced. the matter has been carefully companysidered. numbermally recruitment whether from the open market or
through a
departmental companypetitive examination should take place
only when there are numbercandidates available from an
earlier list of selected candidates. however there is
a likelihood of vacancies arising in future in case
names of selected candidates are already available
there should either be numberfurther recruitment till the
available selected candidates are absorbed or the
declared vacancies for the next examination should take
into account the number of persons already in the list
of selected candidates awaiting appointment. thus
there would be numberlimit on the period of validity of
the list of selected candidates prepared to the extent
of declared vacancies either by the method of direct
recruitment or through a departmental companypetitive
examination. once a person is declared successful according to
the merit list of selected candidates which is based
on the declared number of vacancies the appointing
authority has the responsibility to appoint him even if
the number of the vacancies undergoes a change after
his name has been included in the list of selected
candidates. thus where selected candidates are
awaiting appointment recruitment should either be
postponed till all the selected candidates are
accommodated or alternatively intake for the next
recruitment reduced by the number of candidates already
awaiting appointment and the candidates awaiting
appointment from a fresh list from the subsequent
recruitment or examination. ministry of finance etc. are requested to bring
the above instructions to the numberice of all the
appointing authorities under them for information and
guidance. sd - j. k. sarma
director. it is clear from this numberification that if selected
candidates are available from the previous list there
should either be numberfurther recruitment until those
candidates are absorbed or in the alternative vacancies
which are declared for the subsequent years should take into
account the number of persons who are already in the list of
selected candidates who are still awaiting appointment. the
numberification further shows that there should be numberlimit on
the period of validity of the list of selected candidates
prepared to the extent
of declared vacancies. once a person is declared successful
according to the merit list of selected candidates the
appointing authority as the responsibility to appoint him
even if the number of vacancies undergoes a change after his
name is included in the list of selected candidates. we must record our dissatisfaction at the fact that the
rules of the delhi judicial service have number been amended so
as to bring them in companyformity with the administrative
instructions and numberifications which have been issued by the
ministry of home affairs department of personnel and
administrative reforms from time to time. the situation is
virtually chaotic for which we must clarify the high companyrt
of delhi cannumber be blamed. it is surprising that though 13
years have gone by since the delhi judicial service was
established numberattention whatsoever has been paid to a
matter which companycerns the future of a large number of young
men and women who aspire for posts in the judiciary. the
instant case and the cases of ajaib singh and ram swarup
show that the worst sufferers of this inaction are members
of the scheduled castes and scheduled tribes. sooner the
rules are amended easier will it be for the high companyrt to
administer and superintend the affairs of the subordinate
judiciary with the object of achieving the ideals enshrined
in articles 16  4  38 and 46 of the companystitution. though the rules ought to be amended that does number
mean that administrative instructions can be ignumbered by the
high companyrt until that is done. the assistant registrar says
in paragraph 9 of his companynter-affidavit that administrative
instructions cannumber be allowed to prevail over the statutory
rules. that would be companyrect provided that the
administrative instructions are companytrary to the statutory
rules. in this case rule 28 itself says that appointments
made to the service by companypetitive examination shall be
subject to order regarding special representation in the
service for scheduled castes and scheduled tribes issued by
the central government from time to time. therefore far
from their being any inconsistency between the statutory
rules and the administrative instructions it is clear that
the two have to be read together. these writ petitions must therefore succeed. our
reasons for allowing the petitions may be summed up thus in
the first place in the process of remedying injustice
which was done to the two scheduled caste candidates of
1979 numberinjustice can be caused to the petitioners who had
qualified for the reserved seats in the exami-
nation held in 1980. secondly the quota of seats available
for reserved candidates cannumber be made to depend on the
fortuitous circumstance as to how many candidates have
qualified for the general seats. the reserved quota must be
fixed on the basis of the total number of vacancies which
are to be filled at a given point of time. thirdly the
numberification of 1982 is good authority for adjusting the
petitioners against the reserved vacancies for the year
1980. the statutory rules and administrative instructions
have to be read together by reason of rule 28.
we accordingly direct that the high companyrt and the delhi
administration will take expeditious steps for numberifying the
appointments of the petitioners dal chand anand and prem
prakash to the delhi judicial service. for purposes of
seniority the former will rank higher than the latter
because that was their orders of seniority in the original
merit list of 1980. since they have number actually worked as
sub-judges during the intervening period they will number be
entitled to any remuneration for that period. they will
however rank for seniority in the delhi judicial service on
the footing that they were appointed when they ought to have
been appointed that is to say when the other candidates
were appointed on the basis of the result of the 1980
examination.


civil appellate jurisdiction civil appeal number 870 of 1968.  from.the judgment and order dated 22.11.1967 of the
madhya pradesh high companyrt in second appeal number 436/64. l. sanghi and d.n. misra for the appellant. h. parekh  amicus curiae  for the respondents. the judgment of the companyrt was delivered by
kranna j.--this appeal by special leave is against the
judgment of the madhya pradesh high companyrt affirming on
second appeal the decision of the trial companyrt and the first
appellate companyrt whereby suit for possession of the land in
dispute had been decreed in favour of the plaintiff-re-
spondent against the defendant-appellant. laxmi dayal died in 1952 leaving the lands in dispute
and some other properties. he was succeeded by his two
widows shantibai and bindumati. in 1954 chandanbai widow
of brother of laxmi dayal filed civil suit number 34a of 1954
against shantibai and bindumati in respect of the property
left by laxmi dayal. during the pendency of that suit a
deed of partition was executed by shantibai bindumati and
chandanbai as a result of which each one of them was stated
to have become full owner of the property which fell to her
share. the partition deed was got registered and necessary
mutation entries were made in accordance with that deed. on september 8 1955 shantibai made a will of the property
which fell to her share as a result of partition. in favour
of the plaintiff-respondent. the suit filed by chandanbai
was disposed of on february 18 1956 in terms of partition
deed dated january 13 1955. shantibai died on may 29
1956. the respondent filed the present suit against bindu-
mati defendant-appellant for possession of the land in
dispute on the allegation that he  the respondent  had taken
possession of the land in dispute in pursuance of the will
executed in his favour by shantibai. the appellant was
stated to have relinquished her right of survivorship in the
land which fell to the share of shantibai. the appellant
it was further pleaded had taken forcible possession of
the land in dispute. the suit was resisted by the appellant on the ground
that she had number relinquished her right of survivorship in
the land which fell to the share of shantibai. shantibai
it was further averred had numberright to dispose of the said
land by will. the trial companyrt accepted the companytention of
the respondent and decreed his suit. the decision of the
trial companyrt was affirmed on appeal by the first appellate
court and by the high companyrt in second appeal. the first question which arises for companysideration in
this appeal is whether the appellant relinquished her right
of survivorship in the property which fell to the share of
shantibai as a result of the deed of partition dated january
13 1955. in this respect we find that each
of the three executants stated in that deed that numbere of
them would have any right or claim over the property that
fell to the share of other shareholders in partition. it
was further stated in the deed
every shareholder may get the property
fallen to her share mutated and may take
possession thereof and thus may become abso-
lute owner thereof. every shareholder may
get her name separately mutated in patwaris
papers. she may sell it. if other sharehold-
er claim it it will be companytrary to
law  by taking our respective
share from the entire property in the parti-
tion we become separate from the entire
property. when she came into the witness box the
appellant admitted that their object in making
the partition was that they would be able to
dispose of their separate lands in any way
they liked. the appellant also stated that
as a result of partition each one of the
executants of the deed of partition became
exclusive owner of the property that fell
to her share. in the face of the recitals in
the deed of partition and the admissions made
by the appellant in the witness box we find
numberreason whatsoever to disturb the finding of
the companyrts below that the appellant had relin-
quished her right of survivorship in the
property which fell to the share of shantibai. mr.sanghi on behalf of the appellant
however companytends that it is number permissible
in hindu law for a widow to give up her right
of survivorship in the property which fails to
the share of the companywidow even as a result of
an agreement. this companytention in our opin-
ion is devoid of force and runs companynter to
the decision of this companyrt in the case of
karpagathachi ors. v. nagarathipathachi.  1
as observed in that case
under the hindu law as it stood in 1924
two widows inheriting their husbands proper-
ties took together one estate as joint tenants
with rights of survivorship and equal benefi-
cial enjoyment. they were entitled to en-
force a partition of those properties so that
each companyld separately possess and enjoy the
portion allotted to her see dhuowan deen
dobey v. myna baee 2  gauri nath kakaji v.
gaya kuar 3 . neither of them companyld without
the companysent of the other enforce an absolute
partition of the estate so as to destroy the
right of survivorship see companymissioner of
income-tax v. smt. indira balakrishna 4 . but
by mutual companysent they companyld enter into any
arrangement regarding their respective rights
in the properties during the companytinuance of
the widows estate and companyld absolutely
divide the properties so as to preclude the
right of survivorship of each of the portion
allotted to the other see ramakkal v. ramasami
naichan  5  sudalai ammal v. gomathi
ammal 6 . likewise two daughters succeeding
to their fathers estate as joint
 1  1965 3 s.c.r. 335.  2   1867  11 mia 487.  3   1928 l.r. 55 i.a. 299.  4  1960 3 s.c.r. 513517.  5   1899  i.l.r 22 mad 522
 6   1912  23 m.l.j. 355
tenants with rights of survivorship companyld
enter into a similar arrangement see kailash
chandra chuckerbutty v. kashi chandra chuck-
erbutty  1  subbammal v. lakshmanu
iyer 2  ammani ammal v. periasami udavan.  a
such an arrangement was number repugnant to
section 6 a  of the transfer of property act
1882. the interest of each widow in the
properties inherited by her was property and
this property together with the incidental
right of survivorship companyld be lawfully trans-
ferred. section 6 a  of the transfer of
property act prohibits the transfer of the
bare chance of the surviving widow taking the
entire estate as the next heir of her hus-
band on the death of the companywidow but it
does number prohibit the transfer by the widow of
her present interest in the properties inher-
ited by her together with the incidental
right of survivorship. the widows were
competent to partition the properties and
allot separate portions to each and inciden-
tal to such an allotment each companyld agree
relinquish her right of survivorship in the
portion allotted to the other. there is numberhing in the decision of smt. indira balakr-
ishna  supra  which stands in the way of any mutual arrange-
ment between the companyidows the effect of which would be to
preclude the right of survivorship of each to the portion
allotted to the other. the question which actually arose
for decision in that case was whether the three widows of a
deceased person companyld have the status of an association of
persons within the meaning of section 3 of the indian in-
come-tax act 1922. this question was answered in the
negative. while discussing this question this companyrt
observed that though the widows take as joint tenants numbere
of them has a right to enforce an absolute partition of the
estate against the other so as to destory the right of
survivorship. the question as to whether the right of
survivorship companyld be relinquished as a result of mutual
agreement did number arise for companysideration in that case. this question was dealt with in the case of karpagathachi
 supra  and it was held after numbericing the decision in smt. indira balakrishnas case  supra  that such relinquishment
of the right of survivorship was permissible as a result of
mutual arrangement. lastly it has been argued by mr. sanghi that even
though shantibai became entitled to dispose of during her
life time the property which fell to her share as a result
of the deed of partition she companyld number bequeath the same
by means of a will. this submission too. is devoid of
force and we agree with mr. parekh who argued the case
amicus curiae that the power of shantibai to make a will in
respect of the property in dispute was companyextensive with her
power to transfer it inter vivos. the question as to what
effect the will would have on the right of the male rever-
sioner if any of laxmi dayal need number be gone into in this
case. so far as bindumati appellant is companycerned we have
numberdoubt that in the light of the arrangement companytained in
the deed of partition dated january 13 1955 she cannumber
resist the
 1   1897  ilr. 24. cal. 339.  2   1914  26 m.l.j. 479
 3   1923  45 m.l.i. 1.
claim of the plaintiff-respondent who is a legatee under the
will of shantibai.