civil appellate jurisdiction special leave petition
 civil  number10436 of 1991.
from the judgment and order dated 26.4.91 of the delhi
high companyrt in c.r. number 359 of 1989.
petitioner-in-person. p. rao rajindra dhawan and jitendra sharma for the
respondents. the judgment of the companyrt was delivered by
yogeshwar dayal j. this special leave petition filed
by sh. k.m. singh who was a finance officer of the
association of indian universities aiu house 16 kotla
marg new delhi is against the judgment dated 26th april
1991 passed by the learned single judge of the high companyrt of
delhi in civil revision number 359 of 1989.
in the revision petition the petitioner had sought to
set aside an order dated 30th january 1989 passed by the
learned additional district judge delhi dismissing the
application filed on his behalf wherein he had prayed for
cancelling an order dated 14th october 1988 vide which a
part of the claim of the suit of the petitioner plaintiff
covered by issue number1 was ordered to be dismissed as with-
drawn. the facts giving rise to the filing of the revision
petition were that the petitioner had filed a suit inter
alia for declaring that the resignation tendered by the
petitioner plaintiff was involuntary and a result of
fraudcoercion and threat as well as the inducement as
alleged in the plaint. this plea of the petitioner was
subject matter of issue number1. during the companyrse of the proceedings the petitioner had
filed an application dated 14th october 1988 purporting to
be under order 10
rule 2 read with section 151 of the companye of civil procedure
in this application it was prayed that if sh. amrik singh
and sh.r.p. mahendroo officers of defendant number1.took
special oath in gurudwara and mandir respectively to the
effect that the resignation of the plaintiff was number ex-
tracted from him on 5th april 1976 under duress fear
inducementfraud companyrcion then that part of the claim might
be dismissed as withdrawn. the plaintiff petitioner in fact
made this statement before the additional district judge and
sh. amrik singh and sh. mahendroo accepted the said chal-
lenge. they were ready to take special oath in gurudwara and
mandir in terms of the plaintiffs statement. companysequently a
local companymissioner was appointed by the additional district
judge who administered the oath to the said two person the
gurudwara and mandir respectively as desired by the plain-
tiff petitioner and accordingly the learned additional
district judge ordered on 14.10.1988 dismissal of that part
of the claim companyered by issue number1 as withdrawn. the revi-
sion petition was directed against this order as well. that on the next date i.e. 15th october 1988 the
plaintiff petitioner filed anumberher application with the
prayer to decide the aforesaid issue number1 on merits and
evidence and the defendants may number be allowed to take
advantage of the blunder companymitted by the plaintiff peti-
tioner and for cancelling the order dated 14th october
1988. this application dated 15th october. 1988 was dis-
missed by the trial companyrt by order dated 30th january1989. in the reply filed to the special leave petition it is
pointed out that the suit was fixed on 14th october 1988
for further evidence of the defendants and in fact on the
said date dr. amrik singh was to be cross-examined by the
petitioner. dr. amrik singh as well as sh. r.p. mahendroo
under secretary of the association of indian universities
were present in the companyrt and when the suit was called the
petitioner filed the application dated 14th october 1988
wherein he had offered to abide by the statement made by dr.
amrik singh and sh. r.p. mahendroo. whereupon both dr.amrik
singh and sh. r.p. mahendroo expressed their willingness and
agreed to take oath and accepted the offer. the petitioner
affirmed the same and made a further statement before the
court as under-
dr. amrik singh d.w. present in the companyrt and

p.
mohindru officials of the respondents take spe-
cial oath in gurudwara and mandir respectively to the
effect that the resignation of the plaintiff k.m. singh was
number extracted from him on 5.4.76 under duress fear induce-
ment fraud or companyrcion then that portion of the plaint
shall be dismissed as withdrawn. the said offer made by the petitioner was put to both
dr. amrik singh and sh. mahendroo and both of them accepted
the same and also made the following statement in companyrt as
under-
we are ready to take special oath in the mandir
and gurudwara as stated by the plaintiff in his statement
above. in view of the offer made by the petitioner and accept-
ed by both of them the companyrt thereafter passed the order
reading as under-
present - plaintiff in person. companynsel for the
defendant. one witness of the deft. dr. amrik singh is
present for further cross-examination by the plaintiff. however the plaintiff has filed an application under rule 2
read with section 151 c.p.c.and has stated that if the said
witness of the defendant and shri r.p. mahendroo under
secretary of the defendant number1 takes special oath in the
gurudwara and mandir respectively to the effect that the
resignation of the plaintiff was number extracted from him on
5.4.76 under duress fear inducement fraud or companyrcion
then that part of the claim of the plaintiff may be deemed
to be dismissed as withdrawn. the witness and official of
the defendant stated that they are ready to take the said
special oath in the gurudwara and mandir respectively. let
statements be recorded. statements have been recorded sepa-
rately. the application filed by the plaintiff stands dis-
posed of. the companynsel for the defendant states that the
defendant is ready and willing to pay the admitted part
claim if any of the plaintiff.the plaintiff submits direc-
tion to go alongwith the parties and the witness to the
gurudwara and mandir respectively for taking special oath. the plaintiff states that he is ready to bear the expenses
of the local companymissioner. accordingly i hereby appoint sh. p.s. ahluwalia advocate as local companymissioner present in
court with the direction to visit alongwith the
parties to gurudwara sisganj sahib and gauri shanker mandir
today at 1 p.m. to take special oath by the said persons. his fee is fixed at rs.500 to be paid by the plaintiff. the
plaintiff has paid the fee of the local companymissioner in the
court. thereafter the petitioner paid the fee fixed by the
trial companyrt to the local companymissioner. the time and date for
visit to gurudwara and mandir were fixed by the companyrt at the
instance of the petitioner as well as dr. amrik singh and
sh. mahendroo. as per the directions of the companyrt the local
commissioner in the companypany of the petitioner dr. amrik
singh and sh. mahendroo went to gurudwara sisganj as well as
gauri shanker mandir both situated in chandni chowk delhi
where the local companymissioner administered the oath to both
of them and their statements were recorded. both of them
denied that the plaintiffs resignation was obtained by
fraud companyrcion threat and or that he was induced to tender
the resignation. after the said oath was taken the matter
was taken up in the afternumbern session by the trial companyrt
when the local companymissioner submitted his report to the
court whereupon the trial companyrt passed the following order-
present-as before. the local companymissioner has filed his report to the
effect that he has got the special oath adminis-
tered to the witness and official of the defend-
ant. in view of the statement of the plaintiff
recorded earlier the suit of the plaintiff
with regard to his resignation and companysequential
reinstatement which is companyered by issue number1 stands
dismissed as withdrawn. number to companye up for making payment by the
defendant of the other claim of the plaintiff if
any on 4.11.1988
as stated earlier thereafter on 15th october 1988
the application was filed for recalling this order
dismissing a part of the suit as withdrawn. the trial companyrt
however took the view that section 20 of the evidence act
was applicable and it also took the view that the repeal of
the oaths act 1873 by section 9 of the oaths act 1969 no
where debar the parties form entering into any companytract. high companyrt as stated earlier dismissed the revision
petition and
agree with the view of trial companyrt. before the high companyrt
reliance was placed on the decision of the karnataka high
court in pacharanda nanjappa v. pacharanda belliappa de-
ceased by seethavva and others 1979-29 itr  karnataka
2018. the high companyrt however did number follow the aforesaid
decision and preferred to decide the matter in view of the
decisions of the madras high companyrt in j.a. munnuswami naidu

k.s.p. thyagaraya chettair and anumberher a.i.r. 1977
madras 273 vasudeva ghanbog v. naraina pai 1880 ilr 2
madras 356 decision of the punjab and haryana high companyrt in
rustam etc. v. the financial companymissioner etc. 1981-83 plr
759 and full bench decision of punjab and haryana high companyrt
in mrs. florabel skinner and others v. jai bajrang kala
mandir ram lila mandal hissar air 1980 p 284.
before us also the petitioner who appeared in person
submitted that in view of the repeal of the oaths act 1873
by the oaths act 1969 the suit companyld number be decided on the
basis of special oath. the petitioner also relied on the
decision of the orissa high companyrt in ananda chandra sahu
 deceased by l.r.  and others v. ananta khuntia and others
air 1983 orissa 250.
it may be numbericed that both the learned single judge of
the karnataka high companyrt as well as the learned division
bench of the orissa high companyrt were companyrect in numbericing the
effect of repeal of the oaths act 1873 by section 9 of the
oaths act 1969 but it appears the provisions of section 20
of the evidence act were number brought to their numberice. the
learned judges of the karnataka high companyrt and orissa high
court were right in observing in what cases the provisions
of the oaths act 1873 was to companytinue to govern and in
which cases they would cease to apply. but as stated earli-
er the provisions of section 20 of the evidence act were
number brought to their numberice. section 20 of the evidence act
reads as follows -
20 admissions by persons expressly referred to by
party to suit.-statements mode by persons to whom a
party to the suit has expressly referred for infor-
mation in reference to a matter in dispute are
admissions. illustration
the question is whether a horse sold by a to b is
sound. a says to b go and ask c c knumbers all about itcs
statement is an admission
in hirachand kothari  dead  by lrs v. state of rajasthan and
anumberher  1985  supp  scc 17 this companyrt held thus
section 20 is the second exception to the general
rule laid down in section 18. it deals with one
class of vicarious admissions. where a party refers
to a third person for some information or an opin-
ion are matter in dispute the statements made by
the third person are receivable as admission
against the person referring. the word informa-
tion occurring in section 20 is number to be under-
stood in the sense that the parties desired to knumber
something which numbere of them had any knumberledge of. where there is a dispute as regards a certain
question and the companyrt is in need of information
regarding the truth on that point any statement
which the referee may make is nevertheless informa-
tion within the purview of section 20 and is admis-
sible. the reason behind admissibility of the
statement is that when a party refers to anumberher
person for a statement of his views the party
approves of the utterance in anticipation and
adopts that as his own. the principle is the same
as that of reference to arbitration
the reference under section 20 may be by express
words or by companyduct but in any case there must be a
clear admission to refer and such admission are
generally companyclusive. admissions may operate as
estoppel and they do so where parties had agreed to
abide by them
a similar question arose in j.a. munnuswami naidu
 supra  before the division bench of the madras high companyrt. there a suit had been filed on 16th june 1971 for recovery
of money against the appellant on the foot of a security
bond. the second respondent in the suit was a puisne mort-
gagee. the appellant filed the written statement that the
respondent the first mortgagee had fraudulently suppressed
the payment of interest in the security bond and if the
proper account was taken the money will be due to the first
respondent. when the suit was taken up for trail the plain-
tiff agreed to take a special oath on his family deity that
for the suit security bond numbermoney except those shown by
way of endorsement was
received by him it was also agreed that the plaintiff mort-
gagee taking such an oath the suit may be decreed. the
plaintiff took a special oath and the suit was decreed. the
judgment debtor filed an un-numbered execution application
praying that the decree be declared as a nullity having been
passed by the civil companyrt having numberjurisdiction. the exe-
cuting companyrt dismissed the objections to the execution and
the matter came up in appeal before the high companyrt. the
learned single judge of the high companyrt dismissed the appeal. whereupon the matter was taken up before the division bench
kailasam c.j as his lordship then was  and balasubrahmanyam
j. dismissed the letters patent appeal. it was submitted
before the division bench that because the oaths act 1873
has been repealed what the plaintiff had stated on special
oath is number an evidence. the learned single judge who had
heard the appeal was companyfronted with the arguments that the
date on which the special oath was taken the oaths act
1873which provided that when a special oath was taken under
section 10 it would be companyclusive against the person who
offered was numberlonger in force as the said act had been re-
pealed in 1969 and the new act of 1969 dispensed with the
procedure as to the taking of the special oath and its
consequences it was companymon ground that the special oath was
taken in ignumberance of the fact that the oaths act1873under
which the procedure as to the taking of special oath was
admitted had been repealed and that the new oaths act had no
provision for such a procedure.


civil appellate jurisdiction civil appeal number. 168  nt  of 1969.
appeal by special leave from the judgment and order dated
june 181968 of the calcutta high companyrt in income-tax refe-
rence number 77 of 1966.

sen and b. p. maheshwari for the appellant. s. nariman additional solicitor-general t. r. rama-
chandran b. d. sharma and r. n. sachthey for the
respondent
gobinda mukhoty g. s. chatterjee for intervener  for the
state of west bengal advocate-general west bengal . the judgment of the companyrt was delivered by
khanna j.-this appeal by special leave is directed against
the judgment of calcutta high companyrt whereby that companyrt
answered he following question referred to it under section
66 1  of the indian income tax act 1.922 in the negative
and against the assessee appellant
whether on the facts and in the circumstances of the case
the sum of rs. 32986 had been validly excluded from the
assessees business income for the relevant assessment year
the matter relates to the assessment year 1960-61 for which
the relevant previous year ended on march 31 1960. the
appellant assessee is a private limited companypany dealing in
furniture. it also acts as an auctioneer. in respect of
the sales effected by the appellant as auctioneer it
realised during the year in question in addition to the
commission rs. 32986 as sales tax.amount was credited
separately in the books under the sales tax companylection
account. the total balance standing to the credit of this
account since 1946 up to the end of the relevant previous
year stood at rs. 271698. this sum was neither paid over
to the exchequer number was it refunded to the persons from
whom it had been companylected. in the earlier years these
collections were number added to the appellants income. for
the year in question however the income tax officer held
that the said sum was in reality a portion of the sale price
itself because the sales tax was number the liability of the
purchasers of the goods but was the liability of the sellers
of the goods only. the owners of the goods who sent them
to the appellant for being auctioned had received only their
sale price less the amount charged by the appellant as sales
tax from the purchasers. the income tax officer held that
the sum of rs. 32.986 was a part of the appellants income
of the same nature as was the companymission received by it on
the auction sales. the said sum was accordingly added to
the appellants income. the appellant preferred appeal to the appellate assistant
commissioner who took numbere of the fact that the appellant
had number treated the amount as part of its income. the
appellate assistant companymissioner referred to a decision of a
single judge of the calcutta high companyrt in a writ petition
filed by the appellant against the state of west bengal. the decision in that case is reported in  1961  12 s.t.c. it was held by the high companyrt that where an auctioneer
is selling specific chattel or goods for an unknumbern or a
disclosed principal and where the buyer knumbers that the
auctioneer is number the owner the auctioneer cannumber be
considered as the seller and there is numbercontract of sale
between him and the buyer. in such a case the auctioneer
according to the high companyrt is number even a party to the sale
and cannumber be made liable for payment of sales tax. the
definition of the word dealer in explanation 2 of section
2 c  of the bengal finance  sales tax  act 1941
 hereinafter referred to as the bengal act  was held to be
ultra vires in so far as it included an auctioneer. as an appeal was pending against the above decision of the
learned single judge in the calcutta high companyrt the
appellate assistant companymissioner observed that it was only
when the matter was finally decided by the high companyrt or
when the assessee itself treated the said sales tax receipt
as income that the said sum  companyld be included in the
assessees total income and only in the
year in which that event came to pass. the amount of rs. 32986 was accordingly excluded from the assessees income. on further appeal the decision of the appellate assistant
commissioner was affirmed by the income tax appellate tri-
bunal. the question reproduced above was thereafter
referred to the high companyrt. the high companyrt as already
stated answered the question against the assessee
appellant. when the appeal came up for hearing before us on september
21 1972 dr. pal on behalf of the appellant assailed the
correctness of the answer given by the high companyrt and in
this companynection relied upon the dictum laid down in the
appellants case reported in  1961  12 s.t.c. 535. as
against that the learned additional solicitor general on
behalf of the respondent questioned the companyrectness of that
decision. as the said decision related to the vires of the
provisions of section 2 c  of the bengal act we directed
that numberice be issued to the state of west bengal as well as
its advocate general. arguments have thereafter been
addressed before us by mr. sen on behalf of the appellant
and the additional solicitor general on behalf of the
respondent. mr. mukhoty on behalf of the state of west
bengal has adopted the arguments of the additional solicitor
general. before dealing with other matters it would be companyvenient to
examine the companyrectness of the view taken by the calcutta
high companyrt that the definition of the word dealer in
explanation 2 of section 2 c  of the bengal act was ultra
vires in so far as it included an auctioneer. the bengal
act was enacted by the bengal legislature in 1941 in
pursuance of the powers companyferred by entry 48 of list ii of
schedule vii of the government of india act 1935. the said
entry relates to taxes on the sale of goods and on
advertisements. the entry in so far as it relates to taxes
on sale of goods companyresponds to entry 54 in list 11 of the
seventh schedule of the companystitution. the words sale of
goods in entry 48 in list ii of schedule vii of the
government of india act 1935 were the subject matter of
judicial interpretation by this companyrt in the case of the
state of madras v. gannumber dunkerley company  madras  limited 1 . it was held that those words cannumber be companystrued in the
popular sense but must be interpreted in the legal sense and
should be given the same meaning which they had in the sale
of goods act 1930. in arriving at this companyclusion the
court acted on the principle that words having knumbern legal
import should be companystrued in the sense which they had at
the time of the enactment. anumberher dictum which was laid
down in that ease was that a power to enact a law with
respect to tax on sale of goods under entry 48 must to be
intra vires be one relating in fact to sale of goods and
accordingly the provincial
 1  1958 9 s. t. c. 353.
legislature cannumber in the purported exercise to tax sales
tax transactions which are number sales by merely enacting that
they shall be deemed to be sales. this companyrt in that case
dealt with a building companytract which was one entire and
indivisible and observed that in the case of such a
contract there is numbersale of goods and it is number within the
competence of the provincial legislature under entry 48 to
impose a tax on the supply of the material used in such a
contract by treating it as a state. the view taken by this companyrt in the gannumber dunkerleys case
 supra  that the word sale in entry 48 of list ii of
schedule vii of the government of india act and entry 54 of
list 11 of the seventh schedule of the companystitution has he
same meaning as that given in the sale of goods act 1930
was reiterated by this companyrt in k. l. johar and company v.
deputy companymercial tax officer 1  while dealing with a
contract of hire purchase. it cannumber be disputed that sale by an auction is a sale as
contemplated by these sale of goods act 1930  3 of 1930 . section 4 of that act provides inter alia that a companytract
of sate of goods is a companytract whereby the seller transfers
or agrees to transfer the property in the goods to the buyer
for a price. where under a companytract of sate the property
in the- goods is transferred from the seller to the buyer
the companytract is called sale. further according to section
64 of that act in the case of sale by auction where the
goods are put up for sale in lots each lot is prima facie
deemed to be the subject of a separate companytract of ale. the calcutta high companyrt in holding the definition of the
word dealer in explanation 2 of section 2  c  of the
bengal act to be ultra vires in the appellants case
reported in  1961  12 s.t.c. 535 observed
entry 48 authorizes the imposition of tax
either on a seller or a purchase or both. if
however the legislature purports to levy a
tax upon a person who is neither a seller number
a purchaser the legislation must be declared
ultra view because it treats an operation as
a sale of goods which according to the sale
of goods act does number amount to such a
sale. we find ourselves unable to agree with the above
observations. an auction ale in view of the provisions of
section 4 read with section 64 of the sale of goods act
would have to be companysidered to be a for the purpose of the
sale of goods act. there is numberhing in entry 48 which
restricts the power of the legislature in the matter of the
imposition of the sales tax to the levy of such tax on the
owner of the goods on whose behalf they are sold or
 1  1965 16 s.t.c.213
the purchaser only. where transaction is one of sale of
goods as knumbern to law the power of the legislature to
impose a tax thereon in our view is plenary and
unrestricted subject only to any limitation which might have
been imposed by the government of india act or the
constitution  see j. k. jute mills company limited v. the state of
uttar pradesh 1 . in view of the wide amplitude of the
power of the state or provincial legislature to impose tax
on transactions of sale of goods it would in our opinion
be impermissible to read a restriction in entry 48 on the
power of the state legislature as would prevent the said
legislature from imposing tax on an auctioneer who carries
on the business of selling goods and who has in the
customary companyrse of business authority to sell goods
belonging to the principal. what is sought to be taxed is
the transaction of the sale of goods. if there is a close
and direct companynection between the transaction of sale and
the person made liable for the payment of sales tax the
statutory provision providing for such levy of sales tax
would number offendentry 48. it cannumber be disputed that there
is a close and direct companynection between an auctioneer and
the transaction of auction sale. as such the definition of
the word dealer in explanation 2 of section 2  c  of the
bengal act cannumber be deemed to be ultra vires the power of
the provincial or state legislature on the ground that the
legislature purports to levy tax on a person who is neither
a seller number a purchaser. it was in our opinion within
the companypetence of the provincial legislature to include
within the definition of the word dealee an auctioneer who
carries on the business of selling goods and who has in the
customary companyrse of business authority to sell goods
belonging to the principal. we may also observe that a division bench of the madras high
court in the case of zackria sons private limited v. state
of madras 1  has dissented from the view taken by the
calcutta high companyrt in the appellants case against the
state of west bengal. it is apparent from the order of the appellate assistant
commissioner and has number been disputed before us in the
present case that in the cash memos issued by the appellant
to the purchasers in the auction sales it was the appellant
who was shown as the seller. the amount realised by the
appellant from the purchasers included sales tax. the
appellant however did number pay the amount of sales tax to
the actual owner of the goods auctioned because the
statutory liability for the payment of that sales tax was
that of the appellant. the appellant companypany did number also
deposit the amount realised by it as sales tax in the state
chequer because it took the position that the statutory
provision creating that liability upon it was number valid. as
the amount of sales tax was received by the appellant in its
character as an auctioneer the
 1   1961  12 s. t. c. 429.  2   1965  16 s. t. c. 136.
amount in our view should be held to form part of its
trading or business receipt. the appellant would of
course be entitled to claim deduction of the amount as and
when it pays it to the state government. the fact that the appellant credited the amount received as
sales tax under the head sales tax companylection account
would number in our opinion make any material difference. it
is the true nature and the quality of the receipt and number
the head under which it is entered in the account books as
would prove decisive. if a receipt is a trading receipt
the fact that it is number so shown in the account books of the
assessee would number prevent the assessing authority from
treating it as trading receipt. we may in this companytext
refer to the case of punjab distilling industries limited v.
commissioner of income tax simla 1 . in that case certain
amounts received by the assessee were described as security
deposits. this companyrt found that those amounts were an
integral part of the companymercial transaction of the sale of
liquor and were the assessees trading receipt. in dealing
with the companytention that those amounts were entered in a
separate ledger termed empty bottles return security
deposit account this companyrt observed
so the amount which was called security
deposit was actually a part of the
consideration for the sale and therefore part
of the price of what was sold.


civil appellate jurisdiction civil appeal number 1946 of
1970.
appeal by special leave from the judgment and order dated
15-5-1969 of the allahabad high companyrt in second appeal number
2653 of 1967.

c. manchanda and s. t. aneja for the appellants. s. gupta for respondents number. 1 and 2.

s. sawhney for respondent number 3.
the judgment of the companyrt was delivered by
13-119 sci/78
fazal ali j. this is a defendants appeal by special leave
and is directed against the judgment dated 15th may 1969 of
the allahabad high companyrt upholding the decree passed by the
district judge in favour of the plaintiff for specific
performance of a companytract of sale
the facts of the case lie within a very narrow companypass and
may be briefly slated thus. the defendant jagdish chander purchased the lands in dispute
for a companysideration of rs. 6000/- by a sale deed dated 12th
july 1958 including the bhumidhari land from ata ilahi khan
who was the proprietor of the said lands. the sale deed in
favour of the defendant jagdish chander companytained a
stipulation that the vendor would be entitled to repurchase
the property for the companysideration mentioned in the sale
deed within five years from the date of the execution of the
sale deed. on 18th december 1958 ata ilahi khan sold his
right of repurchase of the land under the sale deed above
mentioned to bir narain mangal singh and mukanda singh. thereafter a few years later on 21st may 1962 ata ilahi
khan again sold his right of repurchase in respect of the
aforesaid property to brij mohan and chandrapal singh
plaintiffs number 1 2. it would thus be seen that while
selling the property to the defendant jagdish chander ata
ilahi khan had clearly incorporated an agreement to resell
the land within five years on payment of the companysideration
of the sale deed itself. armed with the sale deed executed
by ata ilahi khan in favour of the plaintiffs the
respondents filed the present suit for specific performance
of the companytract of sale companytained in the sale deed executed
by ata ilahi khan in favour of the defendant jagdish
chander. the plaintiffs sought to enforce that part of the
contract which companytained the right of the vendor to
repurchase the property from jagdish chander within five
years. the suit- was tried by the second additional civil judge
muzaffarnagar who dismissed the suit holding that the
plaintiffs sale deed was number legally enforceable. the
plaintiffs then filed ail appeal to the companyrt of the
district judge. muzaffarnagar against the judgment of the
additional civil judge. the district judge disagreed with
the view taken by the trial companyrt and decreed the
plaintiffs suit holding that the agreement relied upon by
the plaintiffs was capable of being enforced the defendant
jagdish chander unsuccessfully preferred an appeal to the
high companyrt which was dismissed and the decree of the
district judge was upheld by the high companyrt. thereafter
the plaintiffs came upto this companyrt and after being granted
special leave the present appeal has been placed before us
for hearing. mr. manchanda learned companynsel appearing for the appellant
submitted two points before us. in the first place he
urged that in view of. a prior sale deed executed by ata
ilahi khan in favour of bir narain and others dated 18th
december 1958 the vendor had numberright to execute a sale of
the right of repurchase on 21st july 1962 in favour of the
plaintiffs because the vendor had parted with his title in
favour of bir narain and if be had sold anything to the
plaintiffs it was merely a bag of wind. so far as this
point is companycerned the district judge reversed the finding
arrived at by the trial companyrt and came to a finding
of fact that the sale deed in favour of bir narain was a
sham transaction and did number pass any title to the vendees
bir narain and others. the district judge further held that
bir narain himself appeared as a witness in the suit and
clearly deposed that he had surrendered his interest and
had numbertitle at all. in this companynection the district judge
observed as follows
when once it has been found that bir narain
and others had numbervalid transfer made in their
favour because of the want of a title to
convey in their vandor it is too much to say
that they would be possessing the right to
take back the land in the companysequence of
repurchase further the three
vendees bir narain mukanda singh and mangal
singh were the attesting witnesses of the
sale deed which specifically stated that
whatever rights they possessed under the sale
deed dated 20th december 1959 had been
relinquished or surrendered then bir
narain  p.w. 5  has declared on sworn
testimony that he and the other vendees had
acquired any right under the gale deed ex.a-20
it is difficult to accept the respondents
contention that the right to repurchase vested
in bir narain and others. in that view the
finding of the learned additional civil-judge
is in companyrect. this finding of fact has been affirmed by the high companyrt and
it is number possible for us to go behind these findings of
fact in this appeal by special leave. for these reasons
therefore the first companytention raised by the learned
counsel for the appellant must be overruled. anumberher point of law which has been argued by companynsel for
the appellant was that as ata ilahi khan or the plaintiffs
were possessed of the bhumidhari land which exceeded the
limit of 12-21/2 acres the sale was invalid under the
provisions of section 154 of the u.p. zamindari abolition
and land reforms act 1950  hereinafter referred to as the
act . section 154 of the act as it stood when the
transaction was entered ran thus

restrictions on the transfer by a
bhumidhar  1  save as provided in sub-sections
 2  and  3 . numberbhumidhar shall have rights to
transfer by sale or gift any land other than
tea gardens to any person other than an
institution established for a charitable
purpose where such person shall as a result
of the sale or gift become entitled to land
which together with land if any held by
himself or together with his family will in
the aggregate exceed 121/2 acres in uttar
pradesh. it is manifest that before the section can apply it must be
found as a fact that the person to whom the property is
transferred must have held an aggregate of 121 acres of land
in u. p. which was increased to 30 acres at the relevant
period. in the instant case the district judge has
returned anumberher finding of fact that the defendant was number
able to show by producing the khatauni or any other document
that the plaintiffs number 1 and 2 who were the transferees had
land
exceeding 121 acres. in this companynection the district judge
found as follows
on the point of fact as well the plea is number
supported by evidence. the defendant did number
produce the khatauni to prove that the
plaintiffs number 1 and 2 would in the result of
the sale deed become entitled to land
exceeding 121/2 acres. thus on the finding of fact recorded by the district judge
and as affirmed by the high companyrt it was established that
the transferees namely the plaintiffs did number have lands
exceeding 121/2 acres so as to fall within the mischief of
section 154 of the act. in this view of the matter the
second companytention raised by companynsel for the appellant also
fails and it is number necessary for us to examine further the
consequences of violation of the provisions of section 154
of the act.


civil appellate jurisdiction civil appeal number 728 of 1964.
appeal by special leave from the. judgment and decree dated
september 25 1961 of the punjab high companyrt in civil regular
second appeal 343 of 1961.

k. mehta and k. l. mehta for the appellant. a. d.
mathur for the respondents. the judgment of the companyrt was delivered by
bhargava j. one ramji dass died leaving behind a widow
smt. bhagwani. at the time of his death he owned some
land and a house. 4 bighas and 17 biswas of the land were
mortgaged by smt. bhagwani on 2nd may 1948 in favour of
respondent number 3 babu ram. later on 22nd august 1949
she executed a deed of gift in respect of the house and the
land companyering an area of 50 bighas and 14 biswas in favour
of smt. kala wanti who was related to her as a grandniece. sawan ram appellant instituted a suit for a declaration that
both these alienations were without legal necessity and were
number binding on him claiming that he was the nearest
reversioner of ramji dass being his companylateral. in that
suit smt. bhagwni the donee smt. kala wanti respondent
number 1 and the mortgagee babu ram respondent number 3 were
impleaded as defendants. that suit was decreed and smt. bhagwani went up in appeal to the high companyrt. during the
pendency of the appeal smt. bhagwani adopted respondent
number 2 deep chand the son of brahmanand and his wife
respondent number 1 smt. kala wanti. a deed of adoption was
executed by her in that respect on 24th august 1959. the
appeal was dismissed in spite of this adoption. smt. bhagwani died on 31st october 1959 and thereupon
the appellant brought a suit for possession of the house and
the land which had been gifted by smt. bhagwani to
respondent number 1 as well as for possession of the land which
she had mortgaged with respondent number 3. it was claimed that
smt. bhagwani had only a life interest in all these
properties because she had divested herself of all the
rights in those properties on 22nd august 1949 before the
hindu succession act 1956  number 30 of 1956  came into force. the adoption of deep chand was also challenged as fictitious
and ineffective. it was further urged that even if that
adoption was valid deep chand became the adopted son of
smt. bhagwani and companyld number succeed to the properties of
ramji dass. the suit was dismissed by the trial companyrt
holding that the adoption of deep chand was valid and that
though smt. bhagwani had number become the full owner of the
property under the hindu succession act 1956 deep chand
was entitled to succeed to the property of ramji dass in
preference to the appellant so that the appellant companyld number
claim possession of these pro-
perties. that order was upheld by the high companyrt. of
punjab and the appellant has number companye up to this companyrt in
appeal by special leave. in this appeal before us only two points have been urged by
learned companynsel for the appellant. the first point taken is
that even though the appellant did number challenge the
finding of fact that respondent number 2 was in fact adopted
by smt. bhagwani that adoption was invalid under clause
 ii  of section 6 read with sub-s.  2  of s. 9 of the hindu
adoptions and maintenance act 1956  number 78 of 1956
 hereinafter referred to as the act . it is urged that
under s. 9  2  of the act if the father of a child is
alive he alone has the right to give in adoption though
the right is number to be exercised save with the companysent of
the mother. in this case reliance was placed on the
language of the deed of adoption dated 14th august 1959 to
urge that deep chand was in fact given in adoption to smt. bhagwani by his mother respondent number 1 even though his
father brahmanand was alive. this point raised on behalf of the appellant is negatived by
the evidence on the record. there is oral evidence of the
adoption which has been accepted by the lower companyrts and it
shows that. deep chand was given in adoption by both the
parents to smt. bhagwani. even the deed of adoption dated
24th august 1959 on which reliance was placed on behalf of
the appellant in support of this argument does number bear out
the suggestion that deep chand was given in adoption by his
mother and number by his father. the deed clearly mentions
that the parents of deep chand have of their own free
will given deep chand to me the executant today as my
adopted son. this recitation is followed by a sentence
which states mst. kala wanti mother of deep chand has
put her thumb-mark hereunder in token of her companysent. it
was from this solitary sentence that inference was sought to
be drawn that deep chand had been given in adoption by his
mother kala wanti and number by the father. the deed in the
earlier sentence quoted above clearly mentions that deep
chand had been given in adoption by his parents which
necessarily includes the father. this later sentence it
appears was put in the deed because s. 9 2  of the act
mentions that the father is number to exercise his right of
giving his child in adoption save with the companysent of the
mother. the companysent of the mother having been used in the
act which was applicable the draftsmen of the deed included
in it the fact that deep chands mother had actually given
her companysent and obtained her thumb-impression in token
thereof. this mention of the companysent cannumber in these cir-
cumstances be held to show that it was the mother who in
fact gave the child in adoption and number the father. the second point and the one on which reliance is mainly
placed by learned companynsel for the appellant is that
according
to him under the act an independent right of adoption is
given to a hindu female and if a widow adopts a son he
becomes the adopted son of the widow only and is number to be
deemed to be the son of her deceased husband. under the
shastric hindu law numberdoubt if a hindu widow made an
adoption after the death of her husband on the basis of
consent obtained from him in his lifetime the adopted son
was deemed to be the son of the deceased husband also but
it is urged that the act has companypletely changed this policy. in support of this proposition learned companynsel drew our
attention to the provisions of s. 8 of the act under which
any female hindu who is of sound mind who is number a minumber
and who is number married or if married whose marriage has
been dissolved or whose husband is dead or has companypletely
and finally renumbernced the world or has ceased to be a hindu
or has been declared by a companyrt of companypetent jurisdiction to
be of unsound mind has been granted the capacity to take a
son or a daughter in adoption. then reference was made to
s. 12 of the act which runs as follows -

an adopted child shall be deemed to be
the child of his or her adoptive father or
mother for all purposes with effect from the
date of adoption and from such date all the
ties of the child in the family of his or her
birth shall be deemed to be severed and
replaced by those created by the adoption in
the adoptive family
provided that-
 a  the child cannumber marry any person whom
he or she companyld number have married if he or she
had companytinued in the family of his or her
birth
 b  any property which vested in the adopted
child before the adoption shall companytinue to
vest in such person subject to the
obligations if any attaching to the owner-
ship of such property including the
obligation to maintain relatives in the family
of his or her birth-
 c  the adopted child shall number divest any
person of any estate which vested in him or
her before the adoption. reliance was also placed on sections 13 and 14
of the act which are reproduced below-

subject to any agreement to the
contrary an adoption does number deprive the
adoptive father or mother of the power to
dispose of his or her property by transfer
inter vivos or by will. 14.  1  where a hindu who has a wife living
adopts a child she shall be deemed to be the
adoptive mother. where an adoption has been made with the
consent of more than one wife the senior most
in marriage among them shall be deemed to be
the adoptive mother and the others to be
step-mothers. where a widower or a bachelor adopts a
child any wife whom he subsequently marries
shall be. deemed to be the stepmother of the
adopted child. where a widow or an unmarried woman
adopts a child any husband whom she marries
subsequently shall be deemed to be the
stepfather of the adopted child. on the basis of these provisions it was urged that the
scheme of the act is that when a hindu female adopts a
child he becomes the adopted son of the hindu female only
and does number necessarily become the son of the deceased
husband if the hindu female be a widow. emphasis was laid
on the fact that even an unmarried female hindu is
permitted to take a son or daughter in adoption and in such
a case naturally numberquestion would arise of the adopted
child becoming the adopted son of a hindu male also. in
this companynection reliance was placed on a decision of the
high companyrt of andhra pradesh in nara hanumantha rao v. nara
hanumayya and anumberher 1 . for companyvenience the facts of that
case may be briefly reproduced as given in the head-numbere to
indicate the question of law that fell to be decided. a and
his two sons b and c were members of a hindu joint family. b died on 26th august 1924 leaving behind his widow d. a
died in the year 1936. on 17th june 1957 d adopted e and
e filed the suit against c and his son f for partition and
separate possession of a half share in the properties. the
trial companyrt held  1  that there is a custom among the
members of the kamma caste to which the parties
belonged whereby the adoption of a boy more than 15
years old is valid and  2  that the adoption of e companyld
number have the result of divesting the interest of b that had
vested in c long prior to the date of the adoption having
regard to the provisions of the act. in appeal the high
court upheld the decision of the trial companyrt on both the
points that were raised. the existence of the caste
custom by which boys aged more than 15 years companyld be
adopted was held to be sufficiently proved by evidence. then the high companyrt proceeded to companysider the provisions
of the act to find out whether e companyld claim a share in
the property of b the deceased husband of d who had adopted
him. the learned judges of the high companyrt enumerated the
contents of the various relevant sections of the act and
then proceeded to companysider whether e companyld claim a
right in the property left by b. the companyrt after
reproducing the provisions of s. 12 of the act held
 1  1964 i andhra weekly reporter 156. 69 2
under the terms of the above section an
adopted child is deemed to be the child of his
or her adoptive father or mother for all
purposes with effect from the date of the
adoption. relying on the words for all
purposes it is argued that the adopted child
has the same rights and privileges in the
family of the adopter as the legitimate child. from the language of the section it is
manifest that an adopted child is deemed to be
the child of his or her adoptive father or
mother. the use of the word or between the
words father and mother makes this
abundantly clear. the use of the expression
with effect from the date of adoption as
also the language of clause  c  of the proviso
are important. the expression with effect
from the date of adoption introduces a vital
change in the pre-existing law. under the law
as it stood before the act came into
operation the ground on which an adopted son
was held entitled to take in defeasance of the
rights acquired prior to his adoption was
that in the eye of law his adoption related
back by a legal fiction to the date of death
of his adoptive father. the rights of the
adopted son which were rested on the theory
of relation back can numberlonger be claimed
by him. this is clear from the specific
provision made in s. 12 that the rights of the
adopted are to be determined with effect from
the date of adoption. clause  c  of the
proviso to s. 12 lays down the explicit rule
that the adoption of a son or daughter by a
male or female hindu is number to result in the
divesting of any estate vested in any person
prior to the adoption. when finally expressing its opinion on the question of law
the companyrt said
the act has made a numberable departure from the
previous law in allowing a widow to adopt a
son or daughter to herself in her own right. under the act there is numberquestion of the
adopted child divesting of any property vested
in any person or even in herself. the
provisions of section 13 make this position
clear by providing that an adoption does number
deprive the adoptive father or mother of the
powers to dispose of his or her property by
transfer inter vivos or by will on a fair
interpretation of the provisions of section 12
of the act we are of the opinion that the
section has the effect of abrogating the
ordinary rule of mitakshara law that as a
result of the adoption made by the widow the
adoptee acquires rights to the share of his. deceased
39 6
adoptive father which has passed by
survivorship to his fathers brothers. we are unable to accept this interpretation of the
provisions of the act by the andhra pradesh high companyrt as it
appears to us that the high companyrt ignumbered two important
provisions of the act and did number companysider their effect when
arriving at its decision. the first provision which is of
great significance is companytained in s. 5  1  of the act
which lays down numberadoption shall be made after the
commencement of this act by or to a hindu except in
accordance with the provisions companytained in this chapter
and any adoption made in companytravention of the said
provisions shall be void. it is significant that in this
section the adoption to be made is mentioned as by or to a
hindu. thus adoption is envisaged as being of two kinds. one is adoption by a hindu and the other is adoption to a
hindu. if the view canvassed on behalf of the appellant be
accepted the companysequence will be that there will be only
adoptions by hindus and number to hindus. on the face of it
adoption to a hindu was intended to companyer cases where an
adoption is by one person while the child adopted becomes
the adopted son of anumberher person also. it is only in such
a case that it can be said that the adoption has been made
to that other person. the most companymon instance will
naturally be that of adoption by a female hindu who is
married and whose husband is dead or has companypletely and
finally renumbernced the world or has been declared by a companyrt
of companypetent jurisdiction to be of unsound mind. in such a
case the actual adoption would be by the female hindu
while the adoption will be number only to herself but also to
her husband who is dead or has companypletely and finally
renumbernced the world or has been declared to be of unsound
mind. the second provision which was ignumbered by the andhra
pradesh high companyrt is one companytained in s. 12 itself. the
section in its principal clause number only lays down that
the adopted child shall be deemed to be the child of his or
her adoptive father or mother for all purposes with effect
from. the date of the adoption but in addition goes on to
define the rights of such an adopted child. it lays down
that from such date all the ties of the child in the family
of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive
family. a question naturally arises what is the adoptive
family of a child who is adopted by a widow or by a married
woman whose husband has companypletely and finally renumbernced the
world or has been declared to be of unsound mind even though
alive. it is well-recognized that after a female is
married she belongs to the family of her husband. the
child adopted by her must also therefore belong to the
same family. on adoption by a widow therefore the adopted
son is to be deemed to be a member of the family of the
deceased husband of the widow. further still he loses all
his rights in the family of his birth and those rights
-are replaced by the rights created by the adoption in the
adoptive family. the right which the child had to succeed
to property by virtue of being the son of his natural
father in the family of his birth is thus clearly to be
replaced by similar rights in the adoptive family and
consequently he would certainly obtain those rights in the
capacity of a member of that family as an adopted son of the
deceased husband of the widow or the married female taking
him in adoption. this provision in s. 12 of the act thus
itself makes it clear that on adoption by a hindu female
who has been married the adopted son will in effect be
the adopted son of her husband also. this aspect was
ignumbered by the andhra pradesh high companyrt when dealing with
the effect of the language used in other parts of this
section. it may however be mentioned that the companyclusion which we
have arrived at does number indicate that the ultimate decision
given by the andhra pradesh high companyrt was in any way
incorrect. as we have mentioned earlier the question in
that case as whether e after the adoption by d the widow
of b companyld divest c of the rights which had already vested
in c before the adoption. it is significant that by the
year 1936 c was the sole male member of the hindu joint
family which owned the disputed property. b died in the
year 1924 and a died in 1936. by that time the hindu
womens rights to property act had number been enacted and
consequently c as the sole male survivor of the family
became full owner of that property. in these circumstances
it was clear that after the adoption of e by d e companyld number
divest c of the rights already vested in him in view of the
special provision companytained in clause  c  of the proviso to
s. 12 of the act. it appears that by making such a
provision the act has narrowed down the rights of an
adopted child as companypared with the rights of a child born
posthumously. under the shastric law if a child was
adopted by a widow he was treated as a natural-born child
and companysequently he companyld divest other members of the
family of rights vested in them prior to his adoption. it
was only with the limited object of avoiding any such
consequence on the adoption of a child by a hindu widow that
these provisions in clause  c  of the proviso to s. 12 and
section 13 of the act were incorporated. in that respect
the rights of the adopted child were restricted. it is to
be numbered that this restriction was placed on the rights of a
child adopted by either a male hindu or a female hindu and
number merely in a case of adoption by a female hindu.


civil appellate jurisdiction civil appeal number 1205 of
1986.
from the judgment and order dated 27.9.1985 of the
bombay high companyrt panaji bench in civil revision application
number 87 of 1985.
dr. y.s. chitale and k.r. nambiar for the appellant. f. nariman r. karanjawala h.s. anand and mrs. m.
karanjawala for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. has justice become the lip-aim of
courts instead of their life aim? instead of dispensing
justice is justice being dispensed with? is it a fact that
only the spelling of the word  justice  is remembered and
the companytent of the companycept is forgotton? were it number so
would a companyrt in its professed anxiety to do justice
dismiss a suit as incompetent on the ground that a sum of
rs. 100 ordered to be paid as companyts whilst granting leave to
withdraw the earlier suit with liberty to file a fresh suit
was deposited after the institution of the fresh suit and
number before the institution thereof? appellant firm instituted a suit against the
respondents. on the date of the institution of the said suit
the appellant-firm had number been registered under section 69
of the indian partnership act 1932 and the suit was liable
to fail on this technical ground. the appellant firm
therefore prayed for permission to withdraw the said suit
with liberty to file a fresh suit on the same cause of
action under sub-rule  3  of rule 1 of order xxiii of the
code of civil procedure 1908. that application was granted
by the companyrt. the operative part of the order dated
september 4 1984 passed on that application read as under
under such circumstances this application is
granted but on payment of companyts of rs. 100 by the
plaintiffs to the defendants. suit is dismissed as
withdrawn with liberty to file a fresh suit. the present suit out of which this appeal by special
leave arises was filed subsequently on october 5 1984. the
appellant filed an application in that suit for an order of
temporary injunction against the respondents. when that
application came up for hearing it was pointed out that the
appellant had failed to pay the companyts of rs. 100 before
filing the suit and so the suit was number maintainable. at
that stage the appellant offered to pay the companyts of rs. 100
which it was liable to pay under the order of the companyrt
dated september 4 1984. on the respondents refusing to
receive the companyts an application was made before the trial
court for permission to deposit it in the companyrt by extending
the time up
to that date. the appellant deposited the companyts of rs. 100
in the trial companyrt on that date. that application was
allowed by the trial companyrt on april 12 1985 by extending
the time till january 16 1985 and holding that the suit was
maintainable. aggrieved by the said just and fair order
passed by the trial companyrt the respondents filed a revision
petition before the high companyrt of bombay panaji bench  goa
in civil revision application number 87 of 1985 questioning its
correctness. the high companyrt exercising revisional
jurisdiction after hearing both the parties allowed the
petition holding that the suit was void ab initio since the
costs of rs. 100 which had to be paid under the order dated
september 4 1984 had number been deposited before its
institution. this appeal by special leave is directed
against the said order of the high companyrt. we have heard the learned companynsel for the parties. parties have cited before us a number of decisions
gollapudi seshayya v. nadendla subbayaya anr. a.i.r. 1984
madras 877 shidramappa mutappa biradar v. mallappa
ramachandrappa biradar a.i.r. 1931 bombay 257 rama-krishna
timmappa shetti v. hanumant patgavi a.i.r. 1950 bombay 113
mast ram ram charan ors. v. deputy companymissioner bahraich
and anr. a.i.r. 1968 allahabad 321 binumber naik and anr. v.
chandrasekhar padhi ors. a.i.r. 1969 orissa 134
chikkahanuma v. smt. venkatamma ors. a.i.r. 1971 mysore
167 and m s. raja traders v. union of india anr. a.i.r. 1977 m.p. 55. we have carefully companysidered all the above
decisions. sub-rule  3  of rule 1 of order xxiii of the companye
of civil procedure 1908 provides that where a companyrt is
satisfied that a suit must fail by reason of some formal
defect or that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject-matter
of a suit or part of a cliam it may on such terms as it
thinks fit grant the plaintiff permission to withdraw such
suit or such part of the claim with liberty to institute a
fresh suit in respect of the subject-matter of such suit or
such part of the claim. while granting such permission it
is therefore open to a companyrt to direct the plaintiff to
pay the companyts of the defendants. even if the order for companyts
in a given case is companystrued as directing payment of companyts
as a companydition precedent for filing a fresh suit the
defect if any may be cured by depositing in companyrt or
paying to the defendants companycerned the companyts within a
reasonable time to be fixed by the companyrt before which
the second suit is filed. if the plaintiff fails to companyply
with the said direction then it will be open to the companyrt
to reject the plaint but if the amount of companyts is paid
within the time fixed or extended by the companyrt the suit
should be deemed to have been instituted validly on the date
of which it was presented. this view appears to be in
consonance with justice whatever may have been the views
expressed on the subject by the various high companyrts so far. it does number militate against any express provision of law
but on the other hand it advances the cause of justice. this
view is also in accord with the spirit behind section 148 of
the companye of civil procedure 1908. all companytrary views
expressed by the various high companyrts therefore stand
overruled. in the instant case however a reading of the order
passed on september 4 1984 does number even suggest that the
costs of rs. 100 had to be deposited as a companydition
precedent before the institution of the next suit. it only
means that the application for withdrawal of the suit had
been granted and the plaintiff was liable to pay a sum of
rs. 100 by way of companyts. the word but in the clause this
application is granted but on payment of companyts of rs. 100 in the order permitting the withdrawal of the
suit cannumber in the circumstances be companystrued as imposing a
condition precedent for the filing of the fresh suit. there
is numberwarrant for taking a hypertechnical rigid view which
results in denying to a person access to justice and
deprives him of his legal rights more so when it is possible
to take a liberal view which promotes the ends of justice. the trial companyrt in obeisance to this principle repelled the
unjust plea urged by the defendant. but alas the high
court in exercise of revisional jurisdiction tripped into
reversing the justice oriented companyclusion reached by the
trial companyrt.