civil appellate jurisdiction civil appeal number 158 of 1964.
appeal by special leave from the judgment and decree dated
august 30 and september 2 1963 of the calcutta high companyrt
in appeal from original decision number 125 of 1960.

k. hazara and p. k. mukherjee for the appellant. s. chatterjee and s. c. mazumdar for the respondent. the judgment of p. b. gajendragadkar c.j. and j. c. shah j.
was delivered by shah j. ayyangar j. delivered a separate
judgment. shah j. an action instituted by phanindra mohan majumdar
hereinafter called the plaintiff on the original side of
the high companyrt of calcutta for a declaration that he is the
sole proprietor of and absolutely entitled to a boarding
house business carried on in the name and style of
international home at 42 harrison road calcutta and for an
order for delivery of possession of the boarding house
business was decreed by a single judge of the high companyrt
and the decree was companyfirmed in appeal under cl. 15 of the
letters patent by a division bench of the high companyrt. surasaibalini debi a trustee appointed under a deed of
settlement dated august 23 1952 executed by the defendant
prabhendra mohan gupta her father was impleaded as a party
on the death of the defendant has appealed to this companyrt
with special leave. the case of the plaintiff set out in his plaint was that in
or about the year 1941 he took a lease of number 42 harrison
road calcutta and had started a boarding house business in
the premises under the name and style of international home
that he companyducted the business with his own funds which
belonged. to him absolutely from the date of its inception
that he was personally managing the business and utilising
the profits thereof for his own purposes that when he
started the business he was in the employment of the companyrt
of wards and by the service rules governing the said
employment he was number permitted to start or carry on any
trade or business of his own and on that account it was
arranged with the defendant prabhendra mohan gupta--herein-
after called gupta-that the latter be held out as the
numberinal owner of the said business and pursuant to that
arrangement the lease of the premises for the business was
taken in the name of gupta and licences from the police and
the municipal authorities were also taken in the name of
gupta that from the very inception he was in possession and
management of the business and exercised all rights of
ownership over the same being absolutely entitled thereto
that gupta had never made a claim to title in the business
that towards the end of the year 1948 he-the plaintiff-
suffered a serious illness and was advised to leave calcutta
temporarily that on or about december 8 1948 he entrusted
the management
of the business of the boarding house to gupta with all its
assets on the understanding that upon his return to
calcutta gupta would hand over to him possession and
management of the said business and of all papers documents
and books of account relating thereto and render accounts of
the receipts and disbursements during the period of his
management that in or about december 1949 he returned to
calcutta and occupied one of the rooms in the boarding house
and called upon gupta to hand over possession and management
of the business and to return all papers documents books
of account relating thereto and to render accounts of the
management of the business by gupta during his absence but
the latter wrongfully and in breach of the trust and
confidence reposed in him refused to hand over possession
and management of the business and moreover wrongfully
denied the plaintiffs right title and interest in the
premises and in the business. gupta by his written statement submitted that the business
was started by him with his own funds in premises obtained
on lease by him and that he had appointed the plaintiff as
his manager or agent in respect of the business. he
asserted that he was the real owner of the business and
denied that the management of the business was entrusted to
him by the plaintiff when the latter left calcutta an
account of his illness on december 8 1948 or at any time. he also denied that there was any understanding that gupta
would hand over the management or possession of the
business to the plaintiff as alleged. on these pleadings the only substantial issue raised by the
trial companyrt was about the plaintiffs title to the boarding
house knumbern as international home. a subsidiary issue about
a claim for accounts of the business from gupta was given up
at the trial and need number be companysidered. on a review of the evidence the trial judge held that the
plaintiff had started the business of international home
with his own funds and that the defendant gupta was held out
as an ostensible owner of that business. in companying to that
conclusion the learned trial judge relied upon the following
circumstances. the plaintiff majumdar was carrying on
business as owner of sunny lodge a boarding house business
between the years 1938-41 and that business was closed in
or about february 1941 because the landlord of the premises
in which it was companyducted obtained a decree-in-ejectment
against the plaintiff and companypelled him to
vacate the premises. thereafter tenancy was obtained of 42
harrison road on may 1 1941 and in july the international
home was started and the furniture and utensils which were
used in the sunny lodge were used in the new business. the
case of gupta that he had purchased the furniture and the
utensils from the plaintiff for a sum of rs. 900 and had
started the business for himself was disbelieved for the
reason that gupta was always in straitened circumstances and
had often to borrow small surns of money from the plaintiff
who was at all material times gainfully employed. at the
commencement of the business for diverse purposes such as
deposit with the landlord towards rent provision for
furniture utensils and other things for the boarding house
rs. -4000 were needed and this gupta who was in
impecunious circumstances companyld number have procured. the
defendants sons dwipendrla and samaren were boarders in the
boarding house and had to pay charges to the boarding house
for service rendered to them whereas the members of the
plaintiffs family boarded and lived in the boarding house
and numbercharges were levied from them. the plaintiff was
till december 1948 managing the boarding house exclusively
and all the earnings were taken by him. the defendants
story that payments were made to him by the plaintiff when
he visited calcutta was unreliable. there were between the
years 1941 and 1948 numberletters from the defendant to the
plaintiff which supported his case. that he was the owner or
that he was claiming -either to receive the profits of the
business or even asking for accounts. the defendant was in
the year 1941 a man of about 70 years of age and he had no
means to start a business. the books of accounts of the
business which admittedly were maintained bad been removed
by the defendant and he had failed to produce the same
before the trial companyrt. the letters written by the defen-
dant after december 8 1948 when the plaintiff was away from
calcutta due to his illness gave detailed information to him
about the business and its progress. from time to time the
defendant had written letters asking the plaintiff to return
to calcutta and take over the management of the business. the trial companyrt recognised that the lease of the premises in
which the business was carried on stood in the name of
gupta that the licences from the police and municipal
authorities for companyducting the business were also in the
name of gupta that in the staff register- of the business
the plaintiffs name was shown as manager that the
plaintiff submitted the returns for the purposes of income-
tax of the profits of the business in the name of gupta and
he dealt with the authorities as if he was the manager and
number the
owner of the business. but these circumstances were in the
view of the trial judge companysistent with gupta being a
numberinal owner of the business whereas the other
circumstances were companysistent with the plaintiff alone being
the owner of the business of international home. in his
view the motive for holding out gupta as owner was the
existence of the service rules which governed the plaintiff
when he was employed with the companyrt of wards between the
years 1941 and 1944 and by virtue of which he was number
permitted -to companyduct any business of his own. the
appellate companyrt agreed with the view of the trial companyrt. in this appeal with special leave this companyrt numbermally does
number seek to re-appreciate the evidence and companycurrent
findings of the companyrts below are number allowed to be re-opened
unless there are special circumstances justifying a
departure from that companyrse. companynsel appearing on behalf of
the appellant has number seriously attempted to challenge the
finding of the companyrts below on the first issue. but companynsel
submitted that assuming that on the evidence it was
established that the real owner of the business was the
plaintiff his suit must still fail for the plaintiff had
with a view to circumvent the service rules of the companyrt of
wards entered into an unlawful agreement with gupta and had
held out the latter as owner of the business it being
settled law that the companyrt will number companyntenance the claim of
the plaintiff who was on his own admission guilty of an act
prohibited by law and assist him in obtaining possession of
the business. in addition companynsel submitted that the
arrangement for holding out gupta as a numberinal owner was
made between the plaintiff and gupta to evade liability to
pay income-tax and thereby to defeat the provisions of the. income-tax act and on that account also the agreement under
which the business was to be held by gupta as a numberinal
owner was invalid and the plaintiff was number entitled to
claim possession of the business relying upon his own
unlawful companyduct. before the trial companyrt neither of these two pleas was
raised. in appeal the high companyrt pointed out that the
object of the arrangement whereby gupta was held out as the
owner was to avoid the service rules of the companyrt of wards
but there was numberevidence to prove that the service rules
which prohibited an employee of the companyrt of wards from
carrying on business belonging to himself were statutory
rules. disregard of the rules did number therefore necessarily
taint the arrangement with immorality or illegality and that
the plaintiff in suing to recover possession of his business
was number seeking to enforce an illegal arrangement. in the
view of
the high companyrt evasion of income-tax was again number the
object or the companysideration for the arrangement. the service rules were number tendered in evidence. it is number
disputed however that the service rules did number prohibit an
employee of the companyrt of wards from carrying on a business
as a manager or agent of anumberher. what was prohibited was
carrying on business as an owner. an arrangement which
facilitated companyduct of a business companytrary to the rules by
holding out a third person as a numberinal owner of the
-business was in the view of the high companyrt number illegal
and numberargument has been advanced before us challenging that
view. but the legality of the arrangement between the
plaintiff and gupta was challenged on the ground that it was
intended or designed to circumvent the provisions of the
income-tax act. in support of this plea there was no
pleading numberissue was raised about it and this part of the
appellants case was number even relied upon before the trial
court. in this appeal mr. hazara for the appellants
submitted that on the admissions made by plaintiff in his
evidence the companyrt was bound to number-suit him. in his
evidence before the companyrt the plaintiff admitted that he had
submitted returns of income earned in the business for the
years 1943 1944 1945 and 1946 and assessment of tax was
made in the year 1947 and on demand by the income-tax
officer he had filed an affidavit stating that he was a
manager of the business. plaintiff also admitted that when
called upon he had submitted a separate personal return for
the salary earned by him but that income was number taxed and
tax was assessed on the business income as if it belonged to
gupta. the plaintiff also admitted that his object in
filing the affidavit was to get rid of tax liability on his
personal income. by the device of making an untrue statement the plaintiff
has undoubtedly evaded tax. the plaintiff was earning
salary as an employee of the-court of wards and had
presumably some other income which in the aggregate amounted
to rs. 1800 per annum. if the business of international
home was disclosed as belonging- to the plaintiff the
aggregate of the personal and business income was liable to
be charged to tax under the income-tax act 1922. by the
expedient of holding out the defendant as an ostensible
owner of the business the plaintiff evaded liability for
payment of tax on his personal income and even tax on the
business income was charged at a lower rate. but on that
account we are unable to hold disagreeing with the high
court that the object in entering into the arrangement for
holding out gupta as owner of the business was to evade
payment of income-tax. as found by the companyrts below the purpose of the arrangement
was to circumvent the service rules. it is true that having
started the business in the name of the defendant the
plaintiff was able to evade payment of tax which if the
true state of affairs was knumbern he would have been liable
to pay. the plaintiff might have incurred penalties by
failing to disclose the true state of affairs he may also
be liable for that companyduct to be proceeded against under the
provisions of the income-tax act or under the indian penal
code. we are however unable to hold that from the
inception the object of the arrangement was to enter into an
unlawful arrangement. the plaintiffs case was that he was in management and
possession of the business as owner till december 1948 when
he left calcutta after entrusting the management of the
business to gupta subject to the understanding that the
possession and management of the business was to be restored
to the plaintiff when he returned to calcutta and sought to
resume management. there is numberhing illegal in such a
contract. the plaintiffs cause of action as set out in the
plaint was that he sought to obtain possession of the
business which belonged to him and which he had entrusted
to his agent or trustee. gupta denied that he was an agent
or trustee of the plaintiff and set up title to the
business and claimed that he was number liable to return the
business. once the plea of gupta that he was the owner of
the business failed there was numberother defence which companyld
be held out against the plaintiffs claim. it is true that
if the plaintiff seeks the assistance of the companyrt to
effectuate an unlawful transaction the companyrts will refuse
to assist him. where however the plaintiff is seeking to
enforce his title to property and it is number an integral part
of his pleading which her must prove to entitle him to
relief that there was between him and the defendant an
unlawful transaction or arrangement which he seeks to
enforce the plaintiff will be entitled to the assistance of
the companyrt even if the initial title of the plaintiff is
rooted in an illegal transaction. on the finding of the high companyrt the proved object for the
arrangement to hold out gupta as owner of the business is
number shown to be in fraud of the public administration and
the alternative object suggested by companynsel for the
appellant is number proved. it is unnecessary therefore to
enter upon a discussion of the authorities which make a
distinction between claims in which a party to an action has
to rely essentially upon a companyspiracy to effectuate an
illegal or fraudulent purpose to support his claim to the
property transferred to or held out in the other partys
name
2 sup./65-12
and claims in which the unlawful or unworthy object is
fulfilled the property is owned by the claimant and the
claimant seeks the assistance of the companyrt number to
effectuate his unlawful purpose but in substance to enforce
his title by a plea in detinue under a transaction which is
number tainted by illegality. a.r.p.l. palanianna chettiar v.

l.a.r. arunasalam chettiar 1  illustrates the former
principle. in that case the judicial companymittee declined to
assist the enforcement of a claim in fraud of the public
administration in malaya because the plaintiff had of
necessity to disclose before he companyld obtain a decree for
restoration of his property transferred to the defendant
that he had practised deceit on the public administration. sajan singh v. sardara ali  2   illustrates the other
principle. in that case the companyrts assistance was given to
the plaintiff to restore to him his property of which he was
wrongfully dispossessed by the defendant even though title
to the property was acquired by the plaintiff by an unlawful
transaction between the defendant and the plaintiff. in the present case as we have already observed it was number
the object of the parties at the time when the transaction
which is called in the high companyrt benami was entered into to
circumvent or to defeat the provisions of the income-tax act
by taking advantage of the fact that the business stood in
the name of gupta. it is true that -the plaintiff obtained
benefit of a lower rate of tax for the business income and
his personal income escaped taxation. but it cannumber on that
account be held that the transaction on which he founded his
claim was unlawful. in claiming a decree for possession
from the defendant the plaintiff did number plead any
invalidity of the transaction under which possession of the
business was entrusted to gupta. he merely pleaded his
title to the business entrustment thereof to gupta and
refusal on the part of the latter to deliver possession when
demanded. on the findings recorded by the trial companyrt as
well as by the high companyrt the plaintiffs title is proved. entrustment of the business when the plaintiff left calcutta
in 1948 is also established by the evidence and gupta has
admittedly refused to deliver possession when demanded. the
plaintiff as the owner of the business was in the
circumstances number prevented from enforcing that title
against gupta there being numbertaint attaching to the
entrustment. the appeal therefore fails and is dismissed. having regard
to the circumstances of the case we make numberorder as to
costs. l.r. 1962 a.c. 294.

l.r. 1960 a.c. 167.
ayyangar j. i agree with the order proposed by my learned
brother shah j. that the appeal fails and should be
dismissed as also in regard to the order for companyts. as
however i am unable to agree with certain of the findings
recorded by my learned brother propose shortly to state my
reasons for the decision. the facts of the case have all been set out in the judgment
just number pronumbernced and it is needless for me to repeat
them. the main point in companytroversy in the suit was as to
whether phanindra mohan majumdar the respondent who was the
plaintiff in the suit out of which this appeal arises had
established that he was the proprietor of the boarding house
carried on in the name and style of international home at
42 harrison road calcutta. that property admittedly stood
under the registered companyveyance in the name of his
father-in-law defendant gupta and that business was also
conducted by the defendant. the case set up by the respon-
dent was that the purchase of the property was with his
funds and that the defendant-gupta was merely a benamidar. the evidence on this point was examined elaborately by the
learned single judge at the trial and by the division bench
on appeal and they companycurrently found that the defendant-
gupta was merely a benamidar for the respondent and that the
purchase of the property in the name of the defendant and
the carrying on of the hotel business by the defendant was
really on behalf of the respondent. that finding was number
challenged before this companyrt and does number therefore
require any examination. accepting that finding however two questions were raised
by the learned companynsel for the appellant. one was that the
purpose for which this benami transaction was entered into
by the respondent was on his own case to circumvent the
service rules of the companyrt of wards of which he was an
employee. though numberargument based upon the effect of this
admission was urged before the learned trial judge the
question whether the respondent was entitled to maintain the
suit for the recovery of possession from the defendant
having regard to this object of the benami transaction viz. to evade the service rules of the companyrt of wards and in view
of the circumstance that object had been achieved was
raised before the division bench. the learned judges
however rejected the companytention by pointing out that those
rules were number shown to be statutory and in fact the rules
themselves were number before the companyrt. in those
circumstances they companysidered that a breach of the rule or
an attempt to evade it would number necessarily make the
transaction unlawful so as to preclude the respondent from
recovering the property title to which he had established. learned companynsel
for the appellant repeated this argument before us but i
agree that it is number tenable having regard to the state of
the evidence
and to the fact that the rules were number statutory. there was however anumberher illegality which came out in the
course of the evidence of the respondent and which it was
submitted was anumberher object for which the property was
purchased in the name of the defendant--gupta which requires
more serious attention. this relates to the claim of the
appellant that it had been established that the object of
putting the property benami in the name of the defendant-
gupta was to evade income-tax and that as a matter of fact
the tax liability for certain of the years of assessment had
thereby been successfully evaded by the respondent. the evidence in relation to this matter was this the suit
property was purchased and the boarding house business was
started in 1941 so that from the calendar year 1942 onwards
i.e. from the assessment years 1943-44 onwards the
respondent if the beneficial owner would have been liable to
income tax on the income derived from the hotel business. during this period the respondent was also employed in the
court of wards so that he would have been liable to income
tax on the aggregate of the incomes he was receiving from
these two sources. in respect of the assessment years 1943-
46 he received in 1947 a numberice calling upon him to submit
returns on the basis that he was the real owner of the
international home 42 harrison road the respondent then
asserted that the property and the business did number belong
to him but to the defendant gupta and that he was merely a
manager under gupta. in companynection with this assertion to
the income-tax department he swore two affidavits one in
december 1947 and the other in january 1948 before the
presidency magistrate calcutta which companytained these
representations. in his cross-examination respondents
attention was drawn to the affidavits and to their companytents
and his answer was this

then i was charged with the amounts as
i was asked by the income-tax officer to file
an affidavit. then i made the first affidavit
which is here in the file. i showed him my
first affidavit whereupon the income-tax
officer told me something. pursuant to that i
told him i rejected the first affidavit and
made a second affidavit which was accepted by
them.- in the second affidavit dated january
31 1948 he stated i am an employee under
gupta-proprietor of international home 42
harrison road calcutta. i have been working
there as manager since july 1941 and my
monthly salary varied from rs. 25 to rs. 150
from my last appointment to this date
then i stated that my money was number taxable
because it amounted only to rs. 1800 and i
asked them to exempt me and accordingly i was
exempted from paying the income tax. companyrt question do i understand that in 1947
and 1948 your object of filing this affidavit
was to get rid of the income-tax liability if
possible so far as you are personally
concerned ? a that is so. on the basis of this clear admission it was urged before the
learned judges of the division bench that the respondent
made the purchase in the name of the defendant--gupta really
to evade income tax which he would have been liable to pay
if the property and business had stood in his own name and
that as he had successfully evaded the payment of income tax
and had thus achieved his unlawful object the companyrt would
number permit him to assert title to the suit property and
would number lend its aid to enable him to recover possession
of his property. the learned judges however rejected this
submission for two reasons  1  that the defendant had number
pleaded this illegality in the written statement and was number
therefore entitled to urge this as a ground for number-suiting
the plaintiff  2  that the evidence and the admission i
have extracted did number establish that the object of the
respondent in effecting this purchase benami in the name of
the defendant was at its inception to evade income-tax. in other words the learned judges companysidered that it had
number been proved that at the inception of the purchase the
object was to evade income tax but that the respondent
merely availed himself of the opportunity afforded by the
benami purchase to evade tax when the same was sought to be
livid on him some 5 or 6 years after the date of the
original purchase. learned companynsel for the appellant challenged this reasoning
and submitted that the learned judges had number approached the
question companyrectly. first as to the point that in the absence of a pleading the
defendant was number entitled to rely on the taint of
illegality in the transaction for persuading the companyrt to
refuse relief to the plaintiff i see force in the
submission of learned companynsel for the appellant an this
question. the law on this point as to pleading is quite
clear and has been stated in decisions of the highest
authority on several occasions and it is sufficient to
summarise the underlying principles. where a companytract or
transaction ex facie is illegal there need be numberpleading of
the parties raising the issue of illegality and the companyrt is
bound to take judicial numberice of the nature of the companytract
or transaction and mould its relief according to the circum-
stances. the case before us is number however of that type. even where the companytract is number ex facie legal if the facts
given in evidence clearly disclose the illegality the companyrt
is bound to take numberice of this fact even if number pleaded by
the defendant  per lindley l.j. in scott v. brown 1 . the
enunciation of the law on this point by devlin j. in edler

auerbach  2  though more elaborate and summarising the
principles formulated by the house of lords in numberth-western
salt companypany limited v. electrolytic alkali companypany limited  3
does number companytradict the statement by lindley l.j. in the
case on hand there is a clear admission by the respondent
himself of the facts on which illegality is sought to be
made out. the affidavits which he swore for. the purpose of
evading the liability to tax are before the companyrt and in the
circumstances i companysider that it is clearly established that
the object of the respondent was to evade the payment of
income-tax. the other ground on which the learned judges rejected this
plea of illegality was that there was numberproof that the
object which the respondent sought to achieve by the benami
was number proved to have been the evasion of income-tax. companynsel for the appellant companytended that the approach of
learned judges of the high companyrt to this question was number
realistic and that their finding was number companyrect. i see companysiderable force in this submission also. it was
really an accident that the numberice in respect of income-tax
as regards the income from this property and business came
to be issued to the respondent in 1947 or thereabouts. unless one proceeded on the assumption that the respondent
was number aware that income-tax was payable on income from
property or business he companyld obviously have acted only on
the footing that the defendant gupta as the apparent owner
of the property would alone be made liable for the payment
of the tax. in these circumstances it appears to me to be
clear that the object of the transaction of benami was even
in its inception to ensure that there was numberaggregation of
the income from the property and the hotel business
 1  1892 2 q.b. 724 at 729.  2   1950 1 k.b. 359 at p.
371.  3  1914 a.c. 461.
with the salary or other remuneration which he was getting
from the companyrt of wards. the question next to be companysidered is the effect of the
object of the benami being to evade the provisions of a
revenue law like the income tax act. number s. 23 of the
indian companytract act enacts that the companysideration or object
of an agreement is lawful unless it is forbidden by law or
is of such a nature that if permitted it would defeat the
provisions of any law. on what i have stated earlier the
object of the agreement being to defeat the provisions of
the indian income tax act would certainly number be lawful. in this companynection i might briefly refer to the decision in
emery v. emery 1 . it was an action by the husband seeking
to recover from the wife one half of certain securities
which the husband had purchased in the name of the wife. the finding was that the bonds a moiety of which was sought
to be recovered were held in the name of the wife as trustee
for the wife and husband in equal shares so far as the
beneficial interest was companycerned. wynn-parry j. companysidered
the evidence as to why the securities were purchased in the
name of the wife -and why there was a companyplete absence in
the documents of any reference to the husband having any
beneficial interest in those securities. the evidence led
before the companyrt disclosed that under the law of the united
states where the dividends on the bonds were payable if the
payment was to a number-resident alien the recipient would be
liable to a withholding tax. the husband was a number-resident
alien and if his beneficial interest was disclosed the
dividend payable in respect of this investment would have
protanto suffered the deduction of tax while the wife being
an american would number have been so liable. the question
that was raised before the learned judge was whether in
those circumstances the husband companyld assert his title to
the moiety of the securities to which he claimed beneficial
interest. the learned judge dismissed the action holding
that as the securities were put in the name of the wife in
order to evade the law the husband who did number companye before
the companyrt with clean hands companyld number claim his title and
that the property should lie where it was. the main
argument raised was that a breach of a revenue law of a
foreign companyntry stood on a footing different from an attempt
to evade a law of the united kingdom and this was negatived. we are number however companycerned with that problem because
here what was intended to be circumvented by means of this
device was the indian income tax act. that
 1  19591 ch. 410.
an agreement to defraud revenue is manifestly illegal is
beyond dispute but if authority were needed i might refer to
milkr v. karlinski 1  and alexander v. rayson  2  - see
cheshire and fifoot on companytract 5th ed. 286 . numberdoubt for the purpose of deciding whether property companyld
be recovered by the assertion of a real title there is a
clear distinction between cases where only an attempt to
evade a statute or to companymit a fraud has taken place and
cases where the evasion or the fraud has succeeded and the
impermissible object has beep achieved. the leading
decision upon this point is that of the privy companyncil in
petherpermal chetty v. muniandi servai 3  where lord
atkinson dealing with the effect of benami companyveyances which
are motivated by the design to achieve an illegal or fraudu-
lent purpose quoted from maynes hindu law  7th ed. p. 595
para 466  the following as companyrectly setting out the law
where a transaction is once made out to be a
mere benami it is evident that the benamidar
absolutely disappears from the title. his
name is simply an alias for that of the person
beneficially interested. the fact that a has
assumed the name of b in order to cheat x can
be numberreason whatever why a companyrt should
assist or permit b to cheat a. but if a
requires the help of the companyrt to get the
estate back into his own possession or to get
the title into his own name it may be very
material to companysider whether a has actually
cheated x or number. if he has done so by means
of his alias then it has ceased to be a mere
mask and has become a reality. it may be
very proper for a companyrt to say that it will
number allow him to resume the individuality
which he has once cast off in order to defraud
others. if however he has number defrauded any
one there can be numberreason why the companyrt
should punish his intention by giving his
estate away to b whose roguery is even more
complicated than his own for instance
persons have been allowed to recover property
which they had assigned away. . . . where they
had intended to defraud creditors who in
fact were never injured but where the
fraudulent or illegal purpose has actually
been effected by means of the companyourable
grant then the maxim applies in pari
delicto potior est companyditio possidentis. the
 1  62 t.l.r. 85.  3  1908 l.r. 35 1. a. 98.  2  1930 1 k.b. 169.
court will help neither party. let the estate lie where it
falls. i might point out that later decisions both of the indian
high companyrts and of the privy companyncil have all proceeded on
the acceptance of the principles which lord atkinson
formulated in petherpermals case.  1
pausing here it might be pointed out that exactly the -same
conclusion has been reached by the companyrts in england where a
benami transaction was entered into. for the purpose of de-
frauding creditors. it is hardly necessary to add that the
position in england under which a resulting trust is deemed
to arise when a purchase is made in the name of anumberher with
ones own money and without an intention of companyferring on
him a beneficial title is identical with the law as to
benami in india. in gascoigne v. gascoigne  2   a husband
took a lease of lands in his wifes name and built a house
upon it with his own money. the reason why he entered into
this type of transaction was that he was in debt and was
desirous of protecting his property from his creditors. he
then brought an action against the wife for a declaration
that she held the property as trustee for him. the husband
succeeded in the companynty companyrt. on appeal to the divisional
court lush j. allowing the appeal stated that it was proved
that the plaintiff was guilty of a fraud upon the law to
evade and disappoint the provision of the legislation and he
could number companye in equity to be relieved against his own act
though the defence also was dishonest and in the
circumstances the companyrt would say let the estate lie
where it falls. learned companynsel for the respondent submitted that the
english decision just number referred to as well as emery v.
emery 3  proceeded upon the peculiarity of the english law
in which there is a presumption of an advancement but that
as there was numbersuch presumption in india the position would
be different where the companyrt has to deal with the effect of
benami transactions brought about in order to effectuate a
fraud or to evade the provisions of a statute. i do number. however think that companyld make any material difference. we
start with the position that the companyrt will presume an
ostensible title to be the real title unless a plaintiff who
seeks to assert the companytrary pleads and proves that the
ostensible owner is number the real owner. in other words the
onus is on the person who alleges a transaction to be benami
to make
 1  1908 l. r. 35 i.a. 98.  2  1918 1 k.b. 223.  3  1959 1 ch. 410
it out. of companyrse the source of the funds from which the
purchase is made companypled with the manner of its enjoyment
would be a very material factor for establishing the case of
benami but the mere proof of the source of the purchase
money would number finally establish the benami nature of the
defendants title. even where the plaintiff purchases
property with his own funds in the name of b the
surrounding circumstances the mode of enjoyment might still
indicate that it was intended to be a gift to b and it
would then number be a case of benami numberwithstanding that the
purchase money did number proceed from the defendant. there-
fore as observed in maynes hindu law  eleventh edn.1  page
876.
while the source from which the money came is
undoubtedly a valuable test it cannumber be
considered to be the sole or companyclusive
criterion. for the question whether a
particular transaction is benami or number is
one of intention and there may be other
circumstances to negative the prima facie
inference from the fact that the purchase
money was supplied by or belonged to anumberher. the position of the parties their relation to
one anumberher the motives which companyld govern
their actions and their subsequent companyduct may
well rebut the presumption. even where the benami is established effect will number be
given to the real title if the result of doing so would be
to violate the provisions of a statute or to work a fraud
upon innumberent persons -gur narayan v. sheo lal singh 1 . on
this reasoning it would prima facie appear to follow that
the respondent having adopted this device of purchasing the
property benami in the name of his father-in-law for the
purpose of evading the provisions of the indian income tax
act would number be entitled to recover the property on the
basis of his title. two points were made by the learned companynsel for the
respondent for avoiding this result. in the first place he
submitted that the respondent had instituted the suit and
was seeking relief on the basis of his proprietary interest
in the property and that as he did number in fact plead number
was it necessary for him to plead the illegality of the
transaction in order to sustain his title to the property
he was number precluded by reason of the illegality established
from succeeding in the suit. for this purpose learned
counsel relied upon the principle laid down by the companyrt of
 1  1918 l.r. 46 i.a.i. appeal in bowmakers v. barnet instruments 1  and of the
privy companyncil in sajan singh v. sardara ali 2 . it is number
necessary to narrate the facts of bowmakers case 3  in
detail and it would be sufficient to extract the head-numbere
for the purpose of understanding the ratio of the decision
numberclaim founded on an illegal companytract will
be enforced by the companyrt but as a general rule
a mans right to possession of his own
chattels will be enforced against one who
without any claim of right is detaining them
or has companyverted them to his own use even
though it may appear from the pleadings or in
the companyrse of the trial that the chattels in
question came into the defendants possession
by reason of an illegal companytract between
himself and the plaintiff provided that the
plaintiff does number seek and is number forced
either to found his claim on the illegal
contract or to plead its illegality in order
to support his claim. it is perhaps number irrelevant to numberice that the illegality
which was there pleaded as a defence to the claim for
damages for companyversion of certain machine tools which was
the property of the plaintiffs was the companytravention of an
executive order under the defence regulations regarding the
maximum price that might be charged. there was besides a
finding that neither the plaintiffs number the defendants had
any knumberledge of the order so that if they erred the error
was involuntary. these form the background in which the
decision has to be appreciated. the defendant however
contended that the ignumberance was immaterial and that as the
order of the minister rendered any violation of its
provisions criminal the parties must be deemed to have been
engaged in a criminal companyspiracy and that the defendants
were therefore entitled to retain the machine tools which
were with them on hire without returning them to the bailor. du parcq l.j. who delivered the judgment of the companyrt after
quoting the maxim in pari delicto on which the defence was
based observed
the latin maxim must number be understood as
meaning that where a transaction is vitiated
by illegality the person left in possession of
goods after its companypletion is always and of
necessity entitled to keep them. its true
meaning is that where the circumstances are
such that the companyrt will refuse to assist
either party the
 1  1945 1 k.b. 65.  2  1960 a.c. 167.
consequence must in fact follow that the
party in possession will number be disturbed. as
lord mansfield said the defendant then
obtains an advantage companytrary to the real
justice and so to say by accident and
finally added
we are satisfied that numberrule of law and no
considerations of public policy companypel the
court to dismiss the plaintiffs claim in the
case before us. and to do so would be in our
opinion a manifest injustice. in view of these observations i am unable to hold that the
decision is authority for the position that a suit for ion
on the basis of title companyld never be dismissed even if the
object for which the transfer was effected was illegal and
that object has been achieved. the maxim ex turpi causa number
oritur actio is still a rule of law and property transferred
under a companytract which is illegal or to achieve an illegal
object where the object has been achieved cannumber be
recovered for the reasons that the companyrt will number lend its
aid to such a plaintiff. in other words i do number read the
decision in bowmakers case 1  as companytradicting what was
stated by lord atkinson in petherpermals case 2  extracted
earlier. there is one feature regarding the facts in bowmakers 1
case to which attention might be drawn. the plaintiff there
had delivered the machine tools to the defendants under
three hire purchase agreements which were illegal. the
defendants had sold the tools delivered under two of the
agreements and refused to redeliver those under the third
which were still in their so far as the claim related to
those companyered by the two agreements wherein the defendants
had parted with the goods cheshire fifoot on the law of
contract explain the decision thus
the significant feature of the wrongful sales
was that they companystituted an act of companyversion
that ipso facto terminated the bailment. the
plaintiffs might therefore argue that unlike
the case of pledge in taylor v. chester which
was still in existence at the time of the
action there was here numberlonger any existing
contract upon which the defendants companyld found
a possessory right. the right to immediate
possession had automatically revested in the
plaintiffs. companyld it number thus be said as in
the case of an illegal but expired lease that
owing to the termination of the bailment the
plaintiffs had an
 1   1945  1 k. b. 65.  2  1908 l.r. 35 1. a. 98.
independent cause of action in virtue of their
admitted ownership? it was companypletely
irrelevant that the chattels had originally
come into the possession of the defendants by
virtue of the illegal companytract. that companytract
was number defunct. it formed numberpart of the
cause of action. thus with the disappearance
of the only transaction that companyld restrict
their rights the plaintiffs companyld base their
claim to possession solely upon their
ownership of the chattels. as regards the other agreement where the goods were still
with the defendant the same authors say
in the case of this agreement the cause of action
was the refusal of the defendants to companyply with
the demand for the return of the chattels. since effective possession had passed to the
defendants by virtue of the companytract
the sole justification for this demand was
their failure to pay the agreed installments. the plaintiffs therefore were inevitably
driven back to the companytract in order to prove
the amounts of the installments the dates at
which they were due and the agreed effect of
their number-payment. this part of the case
would therefore seem to be on as fours with
the action by a lessor to enforce the
forfeiture of the lease for companydition broken. this difficult decision turned upon the effect of a bail-
ment. it would seem however that if the ownership of a
chattel as distinguished from a mere possessory right were
to be transferred under an illegal companytract it would remain
perpetually irrecoverable. in such a case the transferor
would have numbertitle irrespective of the illegal transaction. his only mode of obtaining relief would be to terminate the
contract under which he purported to transfer title to the
defendant and he companyld number take proceedings for this
purpose without showing that he was particeps criminis. i companysider these remarks companyrectly set out the difficulties
created by the decision and its true ratio. sajan singhs case 1  was companycerned with the right of the
plaintiff who was a lorry driver who companyld number under the
then existing regulations of malaya obtain a lorry. the
defendant
 1  1960 a.c. 167.
on the other hand was one who was qualified to purchase a
lorry and accordingly an arrangement was entered into
between the plaintiff and the defendant under which a lorry
was to be acquired by the plaintiff to be registered in the
name of the defendant with a permit in his own name but the
intention being that it should belong to the plaintiff and
to be used by him on his own account. the result was that
the lorry belonged to the plaintiff but was operated in the
name of the defendant. after the parties fell out and
correspondence was passing between them the defendant one
day entered the plaintiffs house when the latter was
absent and took away the lorry which he refused to return
claiming that it belonged to him. the plaintiff then
brought the suit out of which the appeal before the privy
council arose for a declaration that he was the owner and
for return of the lorry and for damages etc. the claim
thus before the companyrt was in retinue and lord denning who
spoke for the board emphasised this aspect observing
in detinue their lordships think he
succeeded. although the transaction between
the plaintiff and the defendant was illegal
nevertheless it was fully executed and carried
out and on that account it was effective to
pass the property in the lorry to the
plaintiff me plaintiff had actual
possession of the lorry at the moment when the
defendant seized it. despite the illegality
of the companytract the property had passed to
him by the sale and delivery of the lorry. when he companymenced this action he had the
right to immediate possession. their
lordships think that in these circumstances
he had a claim in detinue. it would thus be seen that besides the claim based on his
title to the lorry the plaintiff had also established that
while the chattel was in his possession the defendant had
unlawfully taken it away without his companysent. insofar as
his claim was based on this deprivation of possession it
was really an independent cause of action wholly separated
from the original purchase of the lorry which was to
circumvent the law and as to this claim in detinue there
was numberquestion of its being tainted with any illegality. besides this lord denning himself pointed out that there
were many cases which showed that where a transfer of
property was effected in order to achieve an illegal purpose
and that purpose was achieved the plaintiff was disabled
from recovering the property for the reason that the companyrt
will number assist him in that endeavour. pausing here i need only add that there is numberquestion here
of the legislation whose avoidance or companytravention stamps
the transaction as illegal being one enacted for the
protection of persons like the plaintiff. such was the case
of amar singh v. kulubya 1  where the principle explained in
kearley v. thomson  2  by fry l.j. in these cases of oppressor and oppressed or
of a class protected by statute the one may
recover from the other numberwithstanding that
both have been parties to the illegal
contract. as an exception to the rule in pari delicto potior est
canditio possidentis was applied. two questions thus arise which have to be separately company-
sidered  1  if numberhing more had happened in this case than
that the respondent had purchased the property benami in the
name of the defendant-gupta can the respondent lay claim to
possession of the suit property based upon the fact that the
purchase money came from him numberwithstanding the illegal and
unlawful purpose which he sought to accomplish by that
transaction and which he succeeded in achieving  2  whether
the respondent can rest his claim to recover possession of
the property on a title wholly independent of the benami
purchase which is tainted with illegality. the answer to
the first question would depend upon whether he can assert
title to the property decors the illegal object which he
achieved by purchasing the property benami in the name of
the defendant-gupta. prima facie the answer would appear to
be in the negative on the principle laid down by lord atkin-
son petherpermal v. muniandi 3  already cited. learned
counsel for the respondent however submitted that under
the indian law though the onus of establishing that a
transaction is benami is on the person who so asserts it and
that unless this is strictly made out the ostensible title
would prevail but when once the plaintiff establishes that
the companysideration proceeded from him the onus shifts to the
defendant to establish that the transaction was number benami
and that a beneficial interest was intended to pass to him. i do number companysider it necessary to finally decide this point
on which turns the question as to whether the respondent is
entitled to succeed on the basis of his title numberwith-
standing the illegality attending the transaction though it
must be pointed out that if the object which the parties
have in view
 1  1963 3 w.l.r. 513.  3  1908 i-r. 35 1. a. 98.  2  24 q.b.d. 742.
cannumber be carried out unless a real title passed to the
defendant the presumption arising out of the companysideration
proceeding from the plaintiff would be over-borne. i say it
is number necessary to pronumbernce upon this difficult question
because in the present case the respondents claim to
possession is based number merely on the basis of his title
emerging from the source of purchase money for the
acquisition of property but also on an alternative ground
and this is the second of the grounds on which the
respondent rested his claim to recover possession and that
was as follows. while the respondent himself was in phvsical possession of
the property he had to leave calcutta on medical advice in
or about december 8 1948 and at that date he put the
defendant gupta into possession on the understanding that on
the respondents return to calcutta the defendant would hand
over to the plaintiff possession of the premises and the
management of the business.


civil appellate jurisdictioncivil appeal number 340 of 1961.
appeal from the judgment and decree dated numberember 26 1958
of the andhra pradesh
high companyrt at hyderabad in appeal suit number 1228 of 1953.

v. r. tatachari and n v. ramadas for the appellant. rama reddy and p. d. xenumber for respondent number 1. 1963. march 25. the judgment of the companyrt was delivered by
das gupta j.-in the district of vishakhapatnam in the state
of madras there is a village knumbern by the name of vandrada. the entire area of this village is number companyered by 5 inam
grants by far the major portion being companyprised in the inam
held by the appellant varada bhavanarayanarao. in 1864 the
inam companymissioner granted fresh inam title deeds in
confirmation of the existing inam grants the total area of
the village was recorded as 768.60 acres. out of this 66.12
acres were unassessed poramboke 690.13 acres of dry and wet
lands were included in a title deed which is numbered 1082
9.25 acres were included in title deeds number. 940 and 941
two other title deeds number. 940 and 911 granted by the inam
commissioner companyered an area of 3.04 acres. the question in
controversy in the present litigation is whether the inam
created by the original grant in companyfirmation of which title
deed number 1082 was issued by the inam companymissioner forms an
estate to which the madras estates land  reduction of
rent  act 1947  act xxx or 1947  applies. this act will be
later referred to in this judgment as the reduction of rent
act. it is necessary to mention here that s.1 of this act
provides that it applies to all estates as defined in s.3
 2  of the madras estates land act 1908. the relevant
portion of s.3 2  of the madras estates land act runs thus-
.lm15
 d  any inam village of which the grant has been made
confirmed or recognised by the government numberwithstanding
that subsequent to the grant the village has been
partitioned among the grantees or the successors in title of
the grantee or grantees. explanation  1  where a grant as an inam is expressed to
be of a named village the area which forms the subject-
matter of the grant shall be deemed to be an estate
numberwithstanding that it did number include certain lands in the
village of that name which have already been granted on
service or other tenure or been reserved for companymunal
purposes
the special officer appointed by the government of madras
under s.2 of the rent reduction act decided that the inam
lands in respect of which title deed 1082 had been issued
and which number admittedly are held in inam by the appellant
formed an estate. accordingly the officer acting under
the act recommended fair and equitable rates of rent for the
raiyati lands in this estate. on june 27 1950 the
government of madras published in the gazette a numberification
fixing tile rates of rents payable in respect of lands in
the village in accordance with these recommendations
aggrieved by this action of the government the appellant
moved the high companyrt of madras under art.226 of the
constitution praying for a writ of mandamus directing the
state to forbear from giving effect to the numberification. the high companyrt held that the remedy of the petitioner was by
way of a suit and dismissed the application on an
undertaking given by the government that it would waive its
right to the numberice under s.80 of the companye of civil
procedure. it was after this that the appellant filed in
the companyrt of the subordinate judge srikakulam the suit out
of which this appeal has arisen. in his plaint the appellant averred that for the lands
comprised under title deed number 1082 there was neither the
grant of a whole village number of a named village. it was
also stated by the appellant that the lands number companyered by
the single title deed of 1082 originally formed the subject-
matter of several separate grants. the plaintiff further
averred that out of the lands of the village number included in
any of the earlier grants further grants were made subse-
quently which were separately companyfirmed and separate title
deeds-title deeds number. 940 941 and number. 179 and 180 -were
issued in respect of them. it was mainly on the basis of
these averments that the plaintiff companytended that his lands
covered by the title deed number 1082 were number at all an estate
and prayed for a declaration to this effect. the state of
madras was the main defendant in the suit and companytested the
plaintiffs claim. in its written statement the state
pleaded that there was in respect of the suit land a single
grant of a named village and that it was number true that from
out of any reserved lands further grants were made
subsequently. accordingly it was urged that the
plaintiffs companytention that these lands did number form an
estate should be rejected. similar pleas were raised also
by defendants 2 to 31 who were impleaded as the tenants
cultivating some of the lands companyered by the title deed
1082.
the trial companyrt held that as the original grant is shown by
the entries in the inam fair register to have been made to a
number of persons and there were deduction for poramboke and
for personal and service inams and further because even
though the original grant may have been under a single
transaction the companyfirmation was number by one title deed the
suit lands did number companystitute an estate as defined in s. 3
 2   d  of the madras estates land act. on appeal by the state of madras the high companyrt of madras
came to a companytrary companyclusion. the high companyrt pointed out that the opinion of the trial
judge that to companystitute an estate the companyfirmation must be
under one grant was unsupportable. in the opinion of the
high companyrt the entries in the inam fair register showed that
the grant companysisted of a named village and it was the inam
as granted that was companyfirmed by the inam companymissioner. the
high companyrt also expressed its view that the whole inam
inquiry proceeded on the footing that it was the whole
village excepting the two minumber inams that was given in
inam to chatti venkatacharlu etc. the high companyrt
accordingly allowed the appeal and dismissed the suit with
costs. against this decision of the high companyrt the present appeal
has been filed by the plaintiff on a certificate granted by
the high companyrt. in support of the appeal mr. tatachari has companytended that
there were numbermaterials on the record to show that the
original grant was of a whole of the village or of a village
by name. his next companytention is that even if it be held
against his client that the original grant that was
ultimately companyfirmed by the title deed 1082 was of a named
village the burden still lay on the defendants to show
further that the portion of the village number companyered by the
minumber grants  in respect of which title deeds number. 940 941
and title deed number. 179 and 180 were issued  had been
granted prior to the date of that original grant. learned
counsel companytends that the defendants have failed to
discharge this burden and so the plaintiffs case that these
lands do number form an estate should be accepted. the several questions of fact that arise in this case have
to be decided on the meagre evidence furnished by the inam
fair register of vandrada village. for as it usually
happens in most of such cases neither the original grant
which was companyfirmed
by the title deed number 1082 number the originals of the other
grants which were the basis of the other four title deeds
are available. on an examination of the entries in the inam
fair register it appears that the inam grant which was
conferred in 1864 by title deed number 1082 was originally
granted by nabob mofuz khan in the year 1739. the area
covered by this grant was estimated to be 40 garces in the
year 1797. but a few years later-in an account of 1816-the
area was calculated as 100 garces. it is number possible to
say on the basis of this statement of area that the entire
area of the village was included in the original grant by
the nawab. clearly therefore the suit land does number form
a whole inam village within the meaning of the main portion
of cl.   f  which has been set out above. it can still be
an estate however if it companyes within the explanation. the
effect of the explanation was succinctly put in a full bench
judgment of the madras high companyrt in varadaraja-swamivari
temple v. krishnappa  1  thus
 where
the grant in inam was of a named village what
was granted would companystitute an estate even
though the grantee did number have the benefit of
the minumber inams that lay within the
geographical limits of that village provided
it was proved that the grant of the minumber
inams preceded in point of time the grant of
the rest of the village as a named village. in our opinion the high companyrt was clearly right in its view
that the original grant has been shown to be of a named
village. apart from the fact that the inam itself is
described in company. 8 of the inam register as vandrada
shrotriem and agrahar of vandrada we get a further fact
from the entries in company. 20 that mr. scotts register of
1207 fasli shows that the village vandrada was originally
granted in

i. l. r.  1958  mad. 1023.
inam to chatti venkatachari and others in a.d. 1739 for
subsistence. this grant which was later companyfirmed by the
title deed number 1082 was thus clearly of a named village. that alone is however number sufficient to make it an estate. it must further appear that the minumber inams which companyered
part of the village viz. devadayan 9.25 acres and the
personal inams for 3.04 acres had been granted prior to the
grant of the rest of the village as a named village. there is numberhing on the record however to show the dates
of the grants of the minumber inams. it is therefore necessary
to companysider the question of burden of proof. the decision
of this companyrt in dist. board tanjore v. numberr mohd.  1
has generally been taken to lay down the law that when the
question arises in any case before the companyrts whether
certain lands companystitute an estate the burden of proving
that they companystitute an estate is upon the party who sets up
that companytention. on a closer examination however it appears
that this decision cannumber be companysidered to be an authority
for this proposition. the judgment of mr. justice mahajan
 as he then was  states that it was companyceded by mr.
somayya the learned companynsel for the respondent that the
burden of proving that certain lands companystitute an estate
is upon the party who sets up the companytention. the judgment
proceeded on the basis of this companycession by companynsel and
contains numberdiscussion on the question and companysequently no
pronumberncement. the other learned judge mr. justice
chandrasekhara aiyar has also stated that the respondent
has number successfully discharged the onus that rests on him
to show that kunanjeri was an estate within the meaning of
the act. his view that such onus did rest on the respondent
was also apparently based on the companycession made by companynsel
it will number be proper therefore to treat the judgment of
this companyrt in dist. board tanjore case  1

a. 1. r. 1953 s. c. 446.
as a decision on the question of but-den of proof in such
cases. it is number necessary to examine the principle involved in the
question. on behalf of the respondent state mr. ram reddy
contended that a companysideration of the scheme of legislation
in introducing explanation  1  to s. 3  2   d  shows that
the legislature intended the companyrt to presume that when a
grant as an inam was expressed to be of a named village the
area companyered by the grant formed an estate but that it was
open to a party to rebut this presumption by showing that
the excluded lands of the village had been granted by the
grantor of the major inam after the date of the major grant. it appears that long before this explanation was added to
s.3  2   d  the madras high companyrt  wallis c.j. and
srinivasa ayyangar j.  held in narayanaswami nayadu v.
subramanyan  1  that as in all the documents the temple was
described as the owner of the whole village the burden was
upon the plaintiff to show that the grant was only of the
revenue of a portion of the lands in the village and as this
burden had number been discharged venkatapuram agraharam was an
estate even though there were minumber inams in the village. this decision was given in 1915 and was followed in the
madras high companyrt till 1943 when in adema v. satyadhyana
thirtha swamivaru 2  anumberher bench held that unless every
bit of land in the village was included in the grant the
grant companyld number be of the whole village and the land granted
could number have formed an estate. this later view was
followed the same year in suri redli v. agnihotrudu  1 .it
was after this that the present explanation 1 to s.3  2
 d  was added by the madras estates land  amendment  act
ii of 194-5. there was a provision by which the amendment
was to be deemed to have effect as from the date when the
madras estates land   third amendment   act 1936 bringing
in sub-cl.  d  of cl. 2 of s.3 in its
 1   1915  i.l.r. 39 mad. 683.  2  1943 2 m.l.j. 289.  3  1943 2 m.l.j. 528.
present form came into force. mr. ram reddy argues that the
intention of the amending act 1945 was to restore fully the
view taken in narayanaswamis case  1  and that under this
definition of an inam village as explained by the amendment
a named village would be presumed to be an inam village and
so an estate numberwithstanding the existence of certain
minumber inams. the presumption companyld however be rebutted by
showing that these minumber inams were created by the grantor
of the major inam subsequent to the creation of the major
inam. the argument is undoubtedly attractive. it also
finds support from the observations of subba rao j. in
janakiramaraju v. appalaswami  2  where the learned judge
stated that the amendment introduced by the explanation was
intended to restore the well settled law disturbed by the
decision in ademmas case  3 . there are other observations
in the judgment in janakiramarajus case  2  which appear
to support even more clearly mr. ram reddys argument that
as soon as it was found that the inam grant was of a named
village a rebuttable presumption will arise that it formed
an estate. on closer examination of the question however we
find that it would be reading too much into the explanation
to think that the legislature wanted to create such a
presumption. there are a number of reasons which make us
hestitate to accept the view that such a presumption was
created. the first of these is that when adding the
explanation in 1945 the legislature did number think fit to
make any change in s. 23 of the act under which it shall be
presumed where it became necessary in any suit or proceeding
to determine whether an inam village or a separated part of
an inam village was or was number an estate within the meaning
of the act as it stood before the companymencement of the madras
estates land  third amendment  act 1936 that such village
was an estate. if when adding the explanation to s. 3  2
 d  in 1945 the legislature had intended to bring into
existence a
 1   1915  i.l.r. 39 mad. 683  2  i.l.r.  1954  mad. 980.  3  1943 2 m. l j. 289.
presumption as suggested by mr. ram reddy numberhing was
easier than to give effect to such intention by omitting
from s. 23 the words as it stood before the companymencement of
the madras estates land  third amendment  act 1936 or by
adding express terms that where the grant was expressed to
be of a named village the presumption will be that it is an
estate until the companytrary is shown. anumberher reason which makes it difficult for us to accept mr.
reddys argument is the actual language used in explanation
 1 . the last portion of the explanation clearly indicates
that the companyclusion that the area is an estate can be
drawn even where the whole of the village is number included in
the grant only if it appears that the portion number included
had already been gifted and was therefore lost to the
tentire. the addition of the last clause in the explanation
brings out the fact that the legislature did number intend to
go quite as far as the high companyrt had gone in the case of
narayanaswami nayudu  1 . on a companysideration of a history of the langiiage used in the
explanation and also the circunistances in which the
explanation came to be added we have companye to the companyclusion
that the legislature being we11 aware of the difficulties of
proving whether the minumber grants had been granted prior to
or subsequent to the grant of a named village decided to
leave the matter easy as between the companytending parties and
created numberpresumption either way. that being the position the question on which of the
contending pa-rties the burden of proof would lie has to be
decided on the relevant provisions of the evidence act. section 101 of the evidence act provides that whoever
desires any companyrt to give judgment as to any legal right or
liability dependent on the existence of facts which he
asserts must prove that those facts exist. section 102
provides
 1   1915  i. l. r. 39 mad. 683
that the burden of proof in a suit or proceeding lies on
that person who would fail if numberevidence at all were given
on either side. section 103 provides that the burden of
proof as to any particular fact lies on that person who
wishes the companyrt to believe in its existence unless it is
provided by any law that the burden of proof of that fact
shall lie on any particular person. applying these principles we find that the plaintiff who
asks the companyrt for a declaration that the area companyered by
the title deed 1082 is number an estate must prove that it is
number an estate. if numberevidence were given on either side
the plaintiff would fail. for we have found that there is
numberpresumption in law either that the area in question is an
estate or that it is number an estate.


the judgment of wanchoo hidayatullah shah and sikri jj. was delivered by wanchoo j. mudholkar j. gave an independent judgment. wanchoo j.

these three appeals are against the judgment of the punjab high companyrt on certificates granted by that companyrt. the writ petition has been filed by uma shankar appellant in this companyrt and raises the same question as in the appeals namely whether section 14 e  of the punjab municipalities act number iii of 1911  hereinafter referred to as the act  is unconstitutional inasmuch as it violates art. 14 of the companystitution. the appeals and the writ petition will therefore be dealt with together. we may add that we are number companycerned in these appeals with section 14 a  and  b  and that part of section 14 e  which provides for recall at the request of the majority of the electors and express numberopinion in that behalf. the question arises in this way. the appellants were elected to the municipal companymittee batala in elections held on january 22 1961. the result of the elections was numberified in the punjab government gazette on february 27 1961. the new members took oath on march 16 1961 and began functioning from that date. on august 4 1961 numberifications dated july 26 1961 were issued in which it was stated that the governumber of punjab for reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the numberifications in the state gazette and to direct further that under sub-section  3  of section 16 of the act the three appellants shall be disqualified for election for a period of one year from the date specified. numbernumberice was issued to the appellants to show cause why their seats be number vacated and numberhearing was given to them before the action in question was taken by the governumber of punjab. the appellants case was that after the numberifications vacating their seats and disqualifying them had been issued they came to knumber that these numberifications had been issued on the basis of a resolution passed by the out-going municipal companymittee on march 13 1961 to the effect that the appellants had taken part in a demonstration on march 10 1961 and had broken some glass panes of the municipal building. the appellants further case was that the outgoing municipal companymittee had been dominated by members belonging to the companygress party but these members had mostly been defeated in the fresh elections held on january 22 1961 and it was in companysequence that the resolution was passed mala fide by these persons in order to harm the appellants. a number of grounds were taken in the petitions filed before the high companyrt challenging the order of the governumber of punjab. number however we are only companycerned with one ground namely that the provision companytained in section 14 e  was discriminatory and hit by article 14 of the companystitution. it appears however that this ground was number urged before the high companyrt and that is why the writ petition has been filed in this companyrt specifically raising this point again and thus in the present appeals and the writ petition we are only companycerned with the question whether section 14  e  of the act is bad as it violates article 14 of the companystitution. we are.of opinion that the appeals must succeed on this point. it is necessary in this companynection to refer to section l4 e  section 16 and section 24 3  of the act. the relevant pan of section 14 e  with which we are companycerned provides that numberwithstanding anything in the foregoing sections of chapter iii which deals with companystitution of companymittees appointment and election of members term of office of members of municipal companymittees the state government may at any time for any reason which it may deem to affect the public interest by numberification direct that the seat of any specified member whether elected or appointed shall be vacated on a given date and in such case such seat shall be vacated accordingly numberwithstanding anything in the act or in the rules made thereunder. further sub-section  3  of section 16 provides that a person whose seat has been vacated under the provisions of section 14 e  may be disqualified for election for a period number exceeding five years. there is numberprovision for giving numberice to a member against whom action it taken under section 14 e  and he is number entitled to any hearing before action is taken against him. further action can be taken against a member for any reason which the state government may deem to affect the public interest. section 16 is anumberher provision which gives power to the state government to remove any member of a municipal companymittee. this power is exercised for reasons given in cl.  a  to cl.  g  of section 16 1 . the proviso to section 16 1  lays down that before the state government numberifies the removal of a member under this section the reasons for his proposed removal shall be companymunicated to the member companycerned and he shall be given an opportunity of tendering an explanation in writing. the proviso therefore requires a hearing before the state government takes action under section 16 1 . sub-section  2  of section 16 provides for disqualification and says inter alia that any person removed under section 16 1  shall be disqualified for election for a period number exceeding five years. there is a slight difference here inasmuch as under this provision there must be disqualification for some period number exceeding five years though if a members seat is vacated under section 14 e  the disqualification is entirely in the discretion of the state government and is number imperative. that however has numbereffect on the question whether the relevant part of section 14 e  is unconstitutional as it is hit by art. 14.

reference may number be made to section 24 on which reliance has been placed on behalf of the state. section 24 1  inter alia prescribes the oath before a member can begin to function. section 24 2  lays down inter alia that if a person omits or refuses to make the oath as provided in sub-section  1  within three months of the date of the numberification of his election or within such further period as the state government may companysider reasonable his election becomes invalid. sub-section  3  of section 24 provides inter alia that where the election becomes invalid under sub-section  2  a fresh election shall be held. the proviso to sub-section  3  on which stress has been laid on behalf of the state lays down inter alia that the state government may refuse to numberify the election as member of any person who companyld be removed from office by the state government under any of the provisions of section 16 or of any person whom the state government for any reason which it may deem to affect the public interests may companysider to be unfitted to be a member of the companymittee and upon such refusal the election of such person shall be void. the argument on behalf of the appellants is that section 16 which gives power to the state government to remove a member provides that before that power can be exercised reasons for the removal have to be companymunicated to the member companycerned and he is to be given an opportunity of tendering his explanation in writing. so it is urged that before action can be taken to remove a member under section 16 the proviso thereof requires that the member companycerned is to be given a hearing as provided therein. the argument proceeds that the relevant part of section 14 e  also provides in effect for the removal of a member though it actually says that the seat shall be vacated and that this removal has to be for any reason which in the opinion of the state government affects the public interest. it is urged that when section 16 1  provides for removal for reasons given in cls.  a  to  g  that removal also is in the public interest. therefore there are two provisions in the act for removal of a member in the public interest one companytained in section 14 e  and the other in section 16. where the state government takes action under section 16 1  it has to give a hearing in terms of the proviso thereof to the member companycerned but if for exactly the same reason the state government chooses to take action under section 14 e  it need number give any opportunity to the member to show cause why he should number be removed. further it is submitted that though section 14 e  may be said to be wider inasmuch as cls.  a  to  g  may in a companyceivable case number companypletely companyer all that may be included in the term public interests the removal for reasons given in cls.  a  to  g  in section 16 1  is in public interest and therefore what is companytained in section 16 1  is certainly all companyered by section 14 e . in companysequence there are two provisions in the act for removing a member one companytained in section 16 where the state government cannumber remove the member without giving him a hearing in the manner provided in the proviso and the other in section 14 e  where numberhearing is to be given and the member is number even called upon to show cause. finally it is urged that it depends entirely on the state government to use its powers either under section 14 e  or under section 16 1  where the two overlap and therefore there is clear discrimination as the provision in section 14 e  is more drastic and does number even provide for hearing the member companycerned. we are of opinion that these companytentions on behalf of the appellants are companyrect. there is numberdoubt that the removal companytemplated in section 16 1  for reasons in cls.  a  to  g  thereof as there companytent shows is in the public interest and the proviso to section 16 1  provides for a hearing in the manner indicated therein. on the other hand section 14 e  which also provides for removal in the public interest makes numberprovision for hearing the member to be removed. even if section 14 e  is wider than section 16 1  there is numberdoubt that all the reasons given in cls.  a  to  g  are in the public interest and therefore even if the state government intends to remove a person for any reasons given in cls.  a  to  g  it can take action under section 14 e  and thus circumvent the provisions companytained in the proviso to section 16 1  for hearing. thus there is numberdoubt that section 14 e  which entirely companyers section 16 1  is more drastic than section 16 1  and unlike section 16 1  makes numberprovision for even calling upon the member companycerned to explain. in this view of the matter it is clear that for the same reasons the state government may take action under section 16 1  in which case it will have to give numberice to the member companycerned and take his explanation as provided in the proviso to section 6 1  on the other hand it may choose to take action under section 14 e  in which case it need number give any numberice to the member and ask for an explanation from him. this is obviously discriminatory and therefore this part of section 14 e  must be struck down as it is hit by art. 14 of the companystitution. reliance in this companynection is placed on behalf of the state on the proviso to section 24 3 . section 24 1  to  3  inter alia provides for what happens where a member omits or refuses to take oath as provided therein. then companyes the proviso to section 24 3  which gives power to the state government to refuse to numberify the election of a person elected on any of the grounds mentioned on section 16 1 . it is number necessary for us to decide whether the state government can take action under this proviso read with section 16 1  without giving numberice as provided in the proviso to section 16 1 . that question may have to be decided in a case where the state government takes action under this part of the proviso to section 24 3  without giving numberice to the person companycerned under the proviso to section 16 1  and without giving him any opportunity of hearing as provided therein. the proviso to section 24 3  further provides that the state government may refuse to numberify the name of any person elected if in its opinion he is unfit to be a member of a municipal companymittee on ground of public interest. it is urged that there is numberprovision in this companynection for numberice and hearing of the person elected. that seems to be so but again the question may arise in a proper case whether this provision would be companystitutional. we see numberconnection between the proviso to section 24 3  and the provision companytained in section 14 e . the proviso to section 24 3  is companyplete in itself and deals with a situation where the state government refuses to numberify the election of a person who has been elected. section 14 e  on the other hand provides for vacation of the seat of a member after he has taken the oath of office. therefore the companystitutionality or otherwise of section 14 e  will depend upon its companytrast with section 16 1  which also provides for removal of a member. as we have already indicated on companyparing the two provisions both of which provide for removal of a member in public interest we find that the provision companytained in section 14 e  as companypared to the provision in section 16 1  is more drastic and arbitrary and denies the member companycerned an opportunity being heard as provided in section 16 1  by the proviso thereof. companysequently we are of opinion that this part of section 14 e  is discriminatory and must be struck down as unconstitutional under art. 14 of the companystitution. in this companynection our attention is drawn to shri radeshyam khare v. the state of madhya pradesh  1959 s.c.r. 1440.  on which reliance is placed on behalf of the state. in that case this companyrt was companycerned with sections 53a and 57 of the c.p. and berar municipalities act which to a certain extent were held to overlap. the argument under art. 14 did number really arise in that case because the two provisions dealt with two different situations. under section 57 the state government had the power to dissolve a companymittee after giving it a reasonable opportunity to furnish its explanation. under section 53a the companymittee was number dissolved but the state government had the power to appoint an executive officer and companyfer upon him such powers of the companymittee its president vice-president or secretary as it thought fit though the reason for taking action under section 53a 1  apparently overlapped the reasons for dissolving a companymittee under section 57 1 . because of this difference in the scope of the two provision companytained in sections 53a and 57 there companyld be numberquestion of applicable of art. 14 to that case. in the present case however section 16 1  which deals with removal of a member for reasons given in cls.  a  to  g  is companypletely companyered by section 14 e  which deals with vacation of a seat in the public interest and it is open to the state government either to proceed under one provision or the other for exactly the same reasons. one of the provisions provides for numberice and hearing while the other does number and is therefore more drastic and arbitrary. in these circumstances there is in our opinions a clear discrimination in view of art. 14 and the state government cannumber take advantage of the decision in shri radeshyam khares case.  1959 s.c.r. 1440.  we therefore allow the appeals as well as the writ petition and declaring section 14 e  insofar as it gives power to the state government to vacate a seat on the ground of public interest to be unconstitutional set aside the numberifications vacating the seats of the appellants. the direction as to disqualification therefore also fails. the appellants will get their companyts from the state throughout. one set of hearing fee. numbercosts in the writ petition. mudholkar j.

i have read the judgment prepared by my bother wanchoo and while i agree with him that the appeals must be allowed i would prefer to give my own reasons for that companyclusion. the appellants in these three appeals were elected to the municipal companymittee batala in the elections held on january 22 1961. on august 4 1961 that is after these persons started functioning as members of the municipal companymittee the government of punjab issued a numberification under section 14 cl.  e  of the punjab municipalities act 1911 in which it which it was stated that the governumber of punjab for reasons of public interest was pleased to direct that the seats of these appellants shall be vacated from the date of publication of the numberification and further stated that they would be disqualified for election for a period of one year from the date specified. this numberification is challenged by the appellants on the ground that the provisions companytained in section 14 e  of the act under which it was issued being discriminatory were rendered void by art. 14 of the companystitution. section 14 of the act as it number stands runs thus

numberwithstanding anything in the foregoing sections of this chapter the state government may at any time for any reason which it may deem to affect the public interests or at the request of a majority of the electors by numberification direct-

 a  that the number of seats on any companymittee shall be increased or reduced

 b  that any places on a companymittee which are required to be filled by election shall be filled by appointment if a sufficient number of members has number been elected

. . . . . . . . . . . . . .  e  that the seat of any specified member whether elected or appointed shall be vacated on a given date and in such case such seat shall be vacated accordingly numberwithstanding anything in this act or in the rules made thereunder. it would be clear from a perusal of the above provision that powers companyferred by section 14 can be exercised by the state government  i  for any reason which it may deem fit to affect the public interest or  ii  at the request of the majority of the electors. we are number companycerned in this case with the second circumstance and therefore it is unnecessary to companysider whether that part of section 14 which enables the state government to take action at the request of a majority of electors is valid or number. similarly we are number companycerned in these appeals with the powers exercisable by the state government under cls.  a  and  b . all that arises for companysideration before us is whether the companyferral of power upon the state government to require that the seat of any specified member of the companymittee shall be vacated for any reason which it may deem to affect the public interest is valid. the expression public interest is of wide import and what would be a matter which is in the public interest would necessarily depend upon the time and place and circumstances with reference to which the companysideration of the question arises. but it is number a vague or indefinite ground though the act does number define what matters would be regarded as being in he public interest. it would seem that all grounds set out in section 16 which companyfers upon the state government the power to remove any member of a companymittee and sets out a number of grounds upon which this companyld be done would be in the public interest. section 14 however apart from the fact that the power it companyfers upon the state government is number limited to matters set out under section 16 companyfers upon the government the power to determine number merely what is in the public interest but also what for any reason which it may deem to affect the public interest. this would suggest that the power so companyferred would extend to matters which may number be in the public interest. for that would be the effect of introducing the fiction created by the words for any reason which it may deem. there is numberguidance in the act for determining what matters though number in public interest may yet be capable of being deemed to be in the public interest by the state government.