civil appellate jurisdiction civil appeal number 360 of 1962.
appeal from the judgment and decree dated february 26 1957
of the allahabad high companyrt in f. a. number 487 of 1945.

k. kapur advocate-general punjab s. murty and k. k.
jain for the appellants. n. dikshit for the respondent. the judgment of the companyrt was delivered by
ayyangar j. this is an appeal by a certificate granted by
the high companyrt of allahabad under art. 133  1   b  of the
constitution and represents and that is our hope the last
stage of a litigation which has lasted over forty years
between the deceased respondent-shyam sundari-and mata din
the father of the appellants. the following facts are necessary to be stated in order to
appreciate the very short point that arises for
consideration in this appeal. the father of shyam
sundari-the deceased respondent was one babu har charan lal. he was the owner along with his two brothers-kanhaiya lal
and sheo narain of plots 599 and 600 situated in sisamau in
kanpur on which there existed certain petty companystructions. the three brothers were separated in interest and were each
entitled to a third share. babu har charan lal died in
december 1915 leaving behind him surviving his widow tulsa
kunwar and an only daughter-shyam sundari. tulsa kunwar died
on june 6 1919 but even before her death kanhaiya lal and
sheo narain the two brothers of her husband claiming a full
interest in those plots sold them to lala mata din the
father of the appellants by two registered deeds of sale for
rs. 7000 on the footing that each was entitled to a half
share ignumbering the rights of tulsa kunwar who was
admittedly numberparty to that transaction of sale. after the
death of tulsa kunwar shyam sundari made a claim against
the purchaser for her third share in the property as the
heir of her father but as this was denied to her she filed
in march 1922 a suit numbered as 20 of 1922 in the companyrt of
the second subordinate judge kanpur for the recovery of
possession of her third share in these two plots. but before this suit was filed certain matters transpired
between mata din and the kanpur improvement trust which have
to be referred to because the agreement entered into on
december 15 1921 between the improvement trust and mata din
as a result of these negotiations and the steps taken by
mata din in companysequence
thereof are relied on by learned companynsel for the appellant
in support of the companytentions raised by him in the appeal. it appears that there was a proposal for the acquisition of
these plots by the kanpur improvement trust that the
proposed acquisition was objected to by mata din and that
the proposal was abandoned by the improvement trust as a
result of the agreement entered into by mata din whereby he
agreed to companyvey to the trust 895.35 sq. yds. of land free
of companyt in lieu of the betterment companytribution and also
agreed to companystruct on the remaining part of the premises
shops and houses in accordance with plans approved by the
improvement trust. me relevance of this agreement and of
theconstructions -effected by mata din in pursuance of the
agreement we shall reserve for companysideration later. the principal defence of mata din to the suit 20 of 1922 was
based on the allegation that har charan lal was joint in
status and in interest with his two brothers and that on the
formers death without male issue the family property
survived to the other two brothers. the trial companyrt found
against the plaintiff shyam sundari on this issue and
dismissed her suit. she filed an appeal to the high companyrt
and the learned judges allowed her appeal. at the stage of
the hearing of the appeal a claim was made by mata din that
the was entitled to companypensation for the building erected by
him on the ground that he had effected improvements to the
property  these being the shops and houses which he
undertook to companystruct under the agreement with the
improvement trust  bona fide and he rested his case in this
regard on the terms of s. 51 of the transfer of property
act. the learned judges however disallowed this claim for
compensation. the claim to companypensation for improvements
effected had number been raised in the pleadings number urged in
the trial companyrt and the learned judges observed
numberdefinite allegation of improvement of the property was
raised in his written statement. numbersum spent on the
building was specified and there is very good
reason. as we have said to believe that mata din had no
building on this and on the 1st december 1921. we cannumber
for a moment believe that the building was finished by the
1st december 1921. he had numberice of the plaintiffs claim
by march 1922 and if he went on after getting numberice of the
plaintiffs claim to finish the companypletion of the building he
was taking a risk and he must accept the companysequences. allowing the appeal the learned judges granted shyam sundari a
decree for possession of a third share of the plots
specified in the lists attached to the plaint. that decree
has number become final. when shyam sundari sought execution of this decree there
was again trouble raised by mata din and when she obtained
joint formal possession of her third share of the property
under the orders of the executing companyrt mata din filed
an appeal to the high companyrt and the learned judges held
that shyam sundari was number entitled on the basis of the
decree which she had obtained in suit 20 of 1922 to any
specific portion of the land. all that she was entitled to
the learned judges said was to symbolical possession of a
third of the plots 599 and 600 and that she ought to file a
separate suit for partition in which this right of hers
could be worked out. in pursuance of this finding and decree of the high
courtshyam sundari filed the suit out of which the present
appeal arises-suit 9 of 1939-against the present
appellants who are the sons of mata din. who had died in
1933. the claim made in the suit was for determining the
third share of the lands and for allotting the same to her
and if there were buildings on such a plot the plaint
prayed that they might either be given over to her or be
permitted to be demolished by the defendants with a
further prayer that the plaintiff might be-put in possession
of her third share as ascertained. she also claimed the
other usual reliefs of mesne profits and companyts. several
defences were raised to this suit some of which were
obviously frivolous. such for instance were the pleas
that the suit was barred by limitation or by s. 47 -of the
civil procedure companye or that she had lost title by adverse
possession on the part of the defendants. the trial judge
overruled these technical defences and held that her suit
for the ascertainment and possession of a third share was
maintainable. but having so held instead of granting her a
decree for a third share of the plots to which she had
obtained a right in suit 20 of 1922 he granted her a decree
for rs. 2620 as representing the third share of the price
of the land in question. she was also granted a decree for
rs. 2000 as her share of the materials on the land at the
date of the sale to mata din but this portion of the decree
was on appeal by the appellants deleted by the learned
judges of the high companyrt and need number therefore be
considered. her claim to-the allotment in specie of a third
share in the suit land was disallowed to her on the ground
that mata din had -constructed certain buildings on the land
and that it was number
possible to allot to her a third share in the land without
interfering with the buildings and that for this reason the
defendants the appellants before us were entitled to the
equity of requiring the plaintiff shyam sundari to sell her
share to them or in other words be companypelled to take the
money value of the land in lieu of her share in it. shyam
sundari appealed from this decree to the high companyrt. the
appeal was allowed by the high companyrt which granted her a
decree for a share of the property. the decree passed in
favour of the respondent by the high companyrt runs in these
terms
a preliminary decree for partition of -the
appellants1/3rd share in plots 599 and 600
area 1122.99 sq. yds. be passed and that it is
hereby directed that the appellant shall be
allotted to her share the land on which the
least valuable companystructions stand and that it
shall be open to the respondents to remove
their companystructions from the site allotted to
the appellants share but if they do number the
appellant shall be entitled to take
possession over them without any payment and
shall become their owner. it is the companyrectness of this decree for partition and
possession that is challenged by the appellants who as
stated before have obtained a certificate of fitness from
the high companyrt. the ground upon which the learned trial judge companysidered
that the defendants were entitled to this equity was that
mata din had made the companystructions on the land being
obliged to do so by reason of the agreement with the trust
and that he effected these improvements as a companyowner and
number as a trespasser and that in entering into an agreement
with the trust he did number act mala fide but to save the land
in dispute for himself and his companyowners from being acquired
by the trust and that as shyam sundari did number assert her
title before the companystruction started it would number be
equitable to permit her to obtain a share in the land on
which the new companystructions stood and that it was within the
jurisdiction of the companyrt trying a partition suit to
transfer to companysharers at the market price the shares of
others instead of dividing the property and that as it was
impracticable to divide the property without demolishing
some at least of the companystructions the defendants were
entitled to insist that they should be permitted to purchase
the third share of shyam sundari in the vacant land. in
reversing this judgment the learned judges of the high
court held that the action of mata din in purchasing the
property was number bona fide. mata din had put forward in the
previous litigation
-suit 20 of 1922-a defence based on s. 51 of the transfer of
property act and in that he failed. the agreement with the
trust was on december 15 1921 and shyam sundaris suit 20
of 1922 was filed in march 1922. it was therefore clear
that whether or number the companystructions were companymenced before
the suit was instituted they were companypleted with knumberledge
of the claim of shyam sundari to which as the companyrts have
number found he had numberdefence. the agreement with the trust
could number justify mata dins action because the trust companyld
number agree with a person who was number the owner of the
property to companystruct buildings on anumberhers property. it
would have been open to mata din to have informed the trust
immediately he got numberice of the claim of shyam sundari that
only a 2/3rd share in the site belonged to him but he did
number do so but companypleted the companystructions ignumbering the
claims of shyam sundari. they companyld number therefore take
advantage of their own acts and companyduct and plead an equity
based upon their wrongful acts. on this line of reasoning
the learned judges held that there was numberequity in favour
of mata din and his heirs and hence passed a decree in
favour of shyam sundari in the terms we have extracted
earlier. learned companynsel for the appellants though he referred to
the partition act companyld number obviously rely upon it because
the procedure adopted by the learned trial judge was number one
which was sanctioned by that enactment viz. sale -of the
entire property which is the subject of partition. he
therefore urged before us that at the. stage when mata din
entered into the agreement with the improvement trust the
position was that the interest of the companysharers was in
jeopardy and they ran the risk of losing the entire property
by the same being acquired under the land acquisition act
and that by his act in entering into the agreement the company
owners had been saved the property number in dispute and that
in the circumstances the agreement was one which was
entered into bona fide and that he companyld claim an equity
based on the companystructions erected in pursuance thereof. we
do number see any substance in this argument. if the property
had been acquired under the land acquisition act
compensation at the market value with the solatium would
have been provided and shyam sundari would have been
entitled to a third share in that companypensation. mere is
therefore numberquestion of mata din salvaging something for
the companyowners and on that ground being entitled to plead an
equity based on such an act. number is there any substance in
the argument derived from the analogy of improvements
effected by companyowners or companysharers for admittedly mata din
dealt
with the property as full owner denying the claims of shyam
sundari to a third share in the property. virtuallyit
would be seen that the equity pleaded is based on the
principle underlying s. 51 of the transfer of property act
and as we have seen the argument calling in aid this
provision of law had been urged before the high companyrt in the
appeal against the decree in suit 20 of 1922 and had been
rejected for the reasons we have extracted earlier and
these reasons clearly negative all bona fides in the
construction of these buildings. in these circumstances we
consider that-the learned judges were justified in treating
the acts of mata din as those of a trespasser who with
numberice of the claim of the true owner had effected
constructions on the property. it is obvious that in those
circumstances he companyld claim numberspecial equity based upon
his having bona fide put companymon property to use and effected
improvements on it. we companysider therefore that the decree
passed by the high companyrt is number open to objection -and the
appeal has accordinglyto fail. before companycluding however it is necessary to deal with a
preliminary objection raised by learned companynsel for the
respondent that the appear had abated and that it ought to
be dismissed in limine on that ground. the decree passed in
the case as would have been seen was for partition and
delivery of separate possession of a 1/3rd share in the two
plots number 599 and 600 of sisamau kanpur in favour of shyam
sundari and in the appeal filed by the heirs of mata din she
was the sole respondent. the high companyrt granted a
certificate of fitness under art. 133  1   b  on september
13 1957 and the appeal was declared admitted by the high
court on numberember 27 1957 and thereupon under the relevant
provisions of the civil procedure companye the appeal became
pending in this companyrt. shyam sundari was stated to have
died sometime in april 1959 and thereafter the appellants
took steps to implead her legal representatives. in the
petition filed by the appellants for the purpose they
stated that the heirs of the deceased were her husband and
four sons and it was prayed that these might be impleaded
as the legal representatives of the deceased. the petition
was granted. the substitution was made and the legal
representatives who were impleaded respondents have entered
appearance and are companytesting the appeal and it is on their
behalf that the preliminary objection is being raised. in
the statement of case which these respondents filed in
october 1962 they took the plea that the appeal had abated
since a son kunwar bahadur and a daughter laxmibai of shyam
sundari had number been brought on record as legal
representatives within the time
allowed by law. numberallegation however has been made
either suggesting that the appellants had number made diligent
and bona fide enquiries regarding who the legal
representatives of shyam sundari were or that they had any
motive fraudulent or otherwise in number adding the son and the
daughter in the array of legal representatives in their
petition under 0. 22 r. 4 civil procedure companye. the
question for companysideration is whether when an appellant has
impleaded heirs of the deceased respondent so far as knumbern
to him within the time allowed by law but has omitted to
bring on record some of the heirs this omission results in
the abatement of the appeal. as we shall point out presently the question in sikh cases
is whether the estate of the deceased is properly and
sufficiently represented for the purpose of defending the
appeal and whether in law the estate can be so represented
even when some of the heirs are without fraud or companylusion
omitted to be brought on record. before however examining
this point it would be companyvient to refer to and deal with
the authorities relied on by companynsel for the respondent in
support of his submission. learned companynsel for the
respondent relied on two decisions of this companyrt -the state
of punjab v. nathu ram  1  and ram sarup v. munshi 2   as
loading to this result. in the first case the government of
punjab acquired certain parcels of land belonging to two
brothers l n who refused to accept the companypensation
offered to them and applied to the government to refer the
dispute to arbitration. the matter was thereafter referred
to arbitration under the punjab land acquisition  defence of
india  -rules 1943 and an award was passed in favour of the
brothers. the government appealed against the award to the
high companyrt and during the pendency of the appeal before the
high companyrt one of the brothers died and numberapplication was
made for bringing on record his legal representatives within
the time limited by law. a preliminary objection -was
raised to the hearing of the appeal by the surviving brother
who claimed that the entire appeal had abated by reason of
the legal representatives of the deceased brother number having
been brought on record in time. the learned judges of the
high companyrt accepted this companytention and dismissed the entire
appeal. the state of punjab came up in appeal to this
court and this companyrt held that in the case of a joint
decree the decree was indivisible and in such a case the
appeal against one respondent alone cannumber be proceeded
with and would have to be dismissed as a result of the
abatement of the appeal against the deceased respondent
 1  1962 2 s.c.r. 636.  2  1963 3 s.c.r. 858.
for otherwise there would be two inconsistent decrees. this
court found that the brothers had made a joint claim and got
a joint decree and it was that decree which was joint and
indivisible that was being challenged in appeal before the
high companyrt. the appeal of the state was dismissed. we do
number see how this decision helps the respondent but shall
examine it after referring to the other decision of this
court on which the learned companynsel sought support. in ram
sarup v. munshi 1  there had been a pre-emption decree and
an appeal was preferred from it by the vendees. one of the
appellants died pending the appeal and his legal
representatives were number brought on record. as the decree
was a joint one and as part of the decree had become final
by reason of the abatement it was held that the entire
appeal must be held to have abated. the principle upon
which these cases rest has numberapplication to the case before
us. the first of the above decisions was a case where -a
joint decree had been passed in favour of two individuals
and that was challenged in the appeal before the high
court. it was companymon ground that the appeal against one of
the joint decree-holders had abated owing to numbere of his
legal representatives having been impleaded within the time
limited by law. there was therefore numbere on the record
who companyld represent the estate of the deceased respondent. in such a case the only question that companyld arise would be
whether the abatement which ex companycessis took place as
regards one of the respondents should have effect partially
i.e. companyfined to the share of the deceased respondent as
against whom the appeal has abated or whether it would
result in the abatement of the entire appeal. this it is
obvious would depend on the nature of the decree and the
natural- of the interest of the deceased in the property. if the decree is joint and indivisible it would be apparent
that the abatement would be total. it was precisely a
question of this sort that was raised by nathu rams 2
case. the other decision in ram sarup v. munshi 1  is also
an illustration of the identical principle and that is the
reason why this companyrt proceeded to companysider elaborately the
nature of the interest inter se of the vendees who had filed
the appeal. it is clear that in the appeal number before us no
such question of partial or total abatement arises. the case before us is entirely different. there was a
decree in favour of shyam sundari-and that is the subject-
matter of this appeal. the question is whether there has
been abatement of the appeal against shyam sundari. shyam
sundaris heirs have
 1  1963 3 s.c.r. 858.  2  1962 2 s.c. r. 636.
been brought on record within the time allowed by law and
the only question is whether the fact that two of the legal
representatives of shyam sundari have been omitted to be
brought on record would render the appeal incompetent. this
turns on the proper interpretation of 0. 22 r. 4 of the
civil procedure companye
4.  1  where a sole
defendant or sole surviving defendant dies
and the right to sue-survives the companyrt on
an application made in that behalf shall
cause the legal representative of the deceased
defendant to be made a party and shall proceed
with the suit. 4.  3  where within the time limited by law no
application is made under sub-rule  1  the
suit shall abate as against the deceased
defendant. when this provision speaks of legal representatives is it
the intention of the legislature that unless each and every-
one of the legal representatives of the deceased defendants
where these are several is brought on record there is no
proper companystitution of the suit or appeal with the result
that the suit or appeal would abate? the almost universal
consensus of opinion of all the high companyrts is that where a
plaintiff or an appellant after diligent and bona fide
enquiry ascertains who the legal representatives of a
deceased defendant or respondent are and brings them on
record within the time limited by law there is no
abatement of the suit or appeal that the impleaded legal
representatives sufficiently represent the estate of the
deceased and the decision obtained with them on record will
bind number merely those impleaded but the entire estate
including those number brought on record. the principle of this
rule of law was thus explained in an early decision of the
madras high companyrt in kadir v. muthukrishna ayyar 1 . the
facts of that case were that when the defendant died the
first defendant before the companyrt was impleaded as his legal
representative. the impleaded person raised numberobjection
that he was number the sole legal representative of the
deceased defendant and that there were others who had also
to be joined. in these circumstances the companyrt observed
in our opinion a person whom the plaintiff
alleges to be the legal representative of the
deceased defendant and whose name the companyrt
enters on the record in the place of such
defendant sufficiently represents the estate
of the deceased for the purposes of the suit
and
 1   1902  i.l.r. 26 mad. 230.
in the absence of any fraud or companylusion the
decree passedin such suit will bind such
estate  if this were number the law it
would in numberfew cases be practically
impossible to secure a companyplete representation
of a party dying pending a suit and it would
be specially so in the case of a muhammadan
party and there can be numberhardship in a
provision of law by which a party dying during
the pendency of a suit is fully represented
for the purpose of the suit but only for that
purpose by a person whose name is entered on
the record in place of the deceased party
under sections 365 367 and 368 of the civil
procedure companye though such person may be only
one of several legal representatives or may
number be the true legal representative. this in our opinion companyrectly represents the law. it is
unnecessary here to companysider the question whether the same
principle would apply when the person added is number the true
legal representative at all. in a case where the person
brought on record is a legal representative we companysider that
it would be companysonant with justice and principle that in the
absence of fraud or companylusion the bringing. on record of
such a legal representative is sufficient to prevent the
suit or the appeal from abating. we have number been referred
to any principle of companystruction of 0. 22 r. 4 or of the
law which would militate against this view. this view of
the law was approved and followed by sulaiman acting c.j. in muhammiad zafaryab khan v. abdul razzaq khan 1 . a
similar view of the law has been taken in bombay-see jehrabi
sadullakhan mokasi v. bismillabi sadruddin kaji 2  -as also
in patna-see lilo sonar v. jhagru sahu  3   and shib dutta
singh v. sheikh karim bakhslz  4   as well as. in nagpur-
abdul baki v. r. d. bansilal abirchand firm nagpur  5  . the lahore high companyrt has also accepted the same view of the
law-see mst. umrao begum v. rehmat ilahi 6 . we are
therefore clearly of the opinion that the appeal has number
abated. the next question is about the effect of the appellant
having omitted to include two of the heirs of shyam sundari
a son and a daughter who admittedly had an interest in the
property and the effect of this matter being brought to the
numberice of the companyrt before the hearing of the appeal. the
decisions to which we have
 1   1928  i.l.r.50 all. 857.  2  a.i.r. 1924 bom. 420.  3   1924  i.l.r. 3 patna 853.  4   1924  i.l.r. 4 patna
320.  5  1.l.r. 1944 nag. 577.  6   1939  i.l.r. 20 lahore
433.
referred as well as certain others have laid down and we
consider this also companyrect that though the appeal has number
abated when once it is brought to the numberice of the companyrt
hearing the appeal that some of the legal representatives of
the deceased respondent have number been brought on record and
the appellant is thus made aware of this default on his
part it would be his duty to bring these others on record
so that the appeal companyld be properly companystituted. in other
words if the appellant should succeed in the appeal it
would be necessary for him to bring on record these other
representatives whom he has omitted to implead originally.


civil appellate jurisdiction c.a. number 1547 of 1975.  appeal by special leave from the judgment and order
dated the 24-1-1974 of the kerala high companyrt in o.p. number
5566/72

s. chitale a. s. nambiar for the appellant. k t. harindranath k.r. nambiar for respondents number. 1 3 and 4.

s. krishnamoorthy iyer n. sudhakaran for respond-
ents number. 5 6.
the judgment of the companyrt was delivered by
kailasam j.this appeal is by special leave granted by
this companyrt against the judgment of the high companyrt of kerala
in o.p. number 5566 of 1972 by respondents 4 to 8 and 13 before
the high companyrt. the respondents herein filed the writ petition for the
issue of the writ of certiorari calling for records relating
to ex. p-10 go rt. number 3386/69/dd dated 23rd october
1969 ex. p12 and ex. p15 and quash the same and to issue a
writ of mandamus directing the respondents 1 and 2 who
are the state of kerala represented by the chief secretary
government of kerala and the director of panchayats to
forbear the implementation of ex. p12 and further direct
them to implement ex. p-8 grading-3 list or in the alterna-
tive to issue a writ of mandamus directing the state of
kerala to companysider and dispose of ex. p13 and similar repre-
sentations by respondents 3 and 4 on merits. it was also
prayed that a writ of certiorari quashing ex. p17 in so far
as it related to the petitioners and respondents 3 to 18 in
the writ petition be issued and also to issue a writ of
mandamus companypelling the respondents 1 and 2 state of kerala
and the director of panchayats to assign the writ petition-
ers the appropriate ranks in the cadre of executive officers
in the panchayat services. the high companyrt allowed the writ
petition and set aside the list ex. p17 the order ex. p12
and the order ex. p15 dismissing the appeal petition ex. p14and directed that a fresh list be prepared in accordance
with the principles laid down in ex. p16 in the light of
the judgment of the high companyrt. aggrieved by the decision
of the high companyrt the appellants have preferred this appeal. the writ petition was companytested by 18 respondents. respondents 3 to 10 were panchayat executive officers of the
malabar area functioning under the madras village panchayat
act 1951 on 31st december 1961. respondents 11 to 18
were panchayat officers functioning as such on 31st decem-
ber 1961 under the travancore companyhin panchayats act 1950.
the kerala panchayats act 1960 act 32 of 1960 received the
assent of the governumber on 8th december 1960 and was pub-
lished in kerala gazette extraordinary number 119 dated 9th
december 1960. it is companymon ground that the respondents
became government servants on and from 1st january 1962.
on 15th may 1961 under ex. p1 the government passed an
order that all panchayat officers executive officers who
continue to hold their appointments at the time when the
act came into force will de absorbed as panchayat executive
officers in the new panchayats. the same order provided
that the staff of the malabar district board shall be ab-
sorbed as panchayat executive officers in suitable grades
according to their qualifications grades and suitability. in december 1961 17 panchayat officers were to be
appointed on a scale of pay higher than the scale applicable
to the panchayat executive officers. the public service
commission selected 17 panchayat executive officers who
were on the scale of pay rs. 80-150 and drew up a list on
27th december 1961. they were appointed as panchayat
inspectors under ex. p8 on 28th december 1961. to fill up
these vacancies 17 of the panchayat executive officers who
were in grade h on the scale of pay rs. 40-120 the respond-
ents 3 to 18 were appointed. the 5 appellants before us
were appointed as executive officers on the grade i rs. 80-
250 as and from 1st january 1962.
the respondents who were the petitioners in the writ
petition were integrated in the service. the government
passed orders laying down the principles of integration of
the district board employees and the panchayat executive
officers and panchayat officers. the impugned orders under
the writ petition are ex. p10 ex. pi2 and ex. p15. it is
also prayed that ex. p17 may be quashed. the government in
ex. p10 came to the companyclusion that the vacancies on the
advice of the public service companymission and the appointment
of those that had been advised on 28th december. 1961 arose
only on the dates enumerated in the order ex. p10 company-
mencing from 30th december 1961 and ending with 2nd janu-
ary 1962 and that the appointment can only be on occurrence
of the vacancies. we do number see on what basis ex. p10
could be challenged. ex. p10 refers to g.o. ms number 93/62
dated 13th february 1962. by the g.o. of 1962 16 respond-
ents in the writ petition were promoted as executive offi-
cers grade i on the advice of the public service companymission. the promotion of the respondents in the writ petition having
been ordered as early as 13th february 1962 without chal-
lenging that order a subsequent order which determined the
date of their companymencement service cannumber be challenged. in
fact the respondents were appointed to the higher posts on
28th december 1961 and they took charge on 30th december
1961 31st december 1961 1st january 1962 and 2nd janu-
ary 1962. the respondents in this petition were integrated
into the service only on 1st january 1962. their position
in the service was to be determined by the government later. if the respondents were aggrieved at the posting to the
higher post of the present appellants and others they ought
to have even challenged promotion which was made on 1st
january 1962. number having questioned the legality of the
promotion or the g.o. of 1962 it is too late for them to
question the validity of the g.o. of 1969 filing a writ
petition in the year 1972.
apart from this insurmountable objection even on merits
the respondents have numberclaim. the government passed ex. r1
dated 31st january 1965 laying down the principles of
integration of the district
board employees and the panchayat executing officers and
panchayat officers. it provided that the integration must
be based on functional parity. ex. p12 is a g.o. dated 5th
may 1970- the g.o. refers to the earlier g. o. dated 13th
february 1962 and 24th june 1969 and states that the
names of the 17 executive officers the appellants and
others are given rank under executive officers grade i as
on 6th january 1962. the gradation list is p-17 dated 22nd
july 1972. after referring to the earlier g. o. the
director of panchayats approved a final gradation list of
executive officers of panchayats as on 6th january 1962.
the appellants are ranked as 58 59 60 61 62 etc. the
respondents made representations against ex. p12 but these
representations were number accepted and a list ex. p8 was
drawn up. the respondents again objected to the list and
subsequently ex. p12 was prepared. objections p14  were
raised to ex. p12 but they were rejected by order ex. p15
and final list ex. p17 was published in accordance with the
suggestions made in ex. p12. the companytention on behalf of the respondents is that the
order under ex. p12 is against the position taken by the
government in ex. p10  and pl0 a  and the director had no
authority to prepare a list in companytravention of exs. p10 and
pl0 a . ex. p12 was challenged on the ground that it is number
in accordance with ex. p-16 which settled the principles to
govern the integration. it was therefore submitted that ex. p12 and p17 must be quashed. strong reliance was placed
on the order of the government dated 15th may 1961 which
while it provided that panchayat officers executive officers
who companytinue to hold their appointments at the time when the
act companyes into force will be absorbed as panchayat executive
officers in the new panchayats secured the right of the
staff of the district board by providing that the staff of
the malabar district board shall be absorbed as panchayat
executive officers in suitable grades according to their
qualifications grades and suitability. on the basis of the
principle of integration above cited it was submitted that
if the vacancies in which the appellants and other panchayat
executive officers were absorbed arose after 1st january
1962 the respondents would be entitled to be integrated
along with the panchayat executive officers and as they were
drawing the same pay they ought to have been given an equal
ranking. we have already pointed out that these appoint-
ments were made before 31st december 1961 and as such
the respondents cannumber have any claim. the appointments of
the appellants and other panchayat executive officers were
made before 31st december 1961 and as the integration was
to take effect from 1st january 1962 they cannumber have any
grievance. further it will be seen from 6.0. ms.97/67/a
rdd dated 18th march 1967 which refers to absorption of
various categories of staff of the defunct malabar district
board in the department of local bodies it is stated in
paragraph 3 that while 9 u.d. clerks will be equated to the
posts of panchayat executive officers 2nd grade 21 lower
division clerks and 8 revenue inspectors and 4 clerical
attenders will be equated to the posts of the panchayat
executive officers 3rd grade. it is stated that respond-
ents 1 to 4 companye under this category and are only 3rd grade
executive officers. it will thus be seen that the respond-
ents were number equated with the appellants and other pan-
chayat executive officers when they were integrated from
the district board service. the persons similarly situated as the respondents herein
who were integrated from the district board services filed
writ petitions before the high companyrt impleading the present
appellants challenging the gradation and failed in their
attempt. the earliest petition is in o.p. number 1431 of
1970. justice isaac who heard the petition observed that
the petitioners came in the integrated service as 3rd
grade executive -officers and were promoted to 2nd grade
with effect from 6th february 1968 while respondents 3
to 10  some of whom are appellants before us  have been
promoted as early as 16th february 1962 as 1st grade
officers. the learned judge further observed even
ignumbering this respondents 3 to 10 were i grade executive
officers from 16-2-1962 while the petitioner has become
even ii grade executive officer only with effect from 6-2-
1966. as the petitioner before the learned judge was
holding a post much inferior to the posts held by respond-
ents 3 to 10 from 1st february 1962 onwards he dismissed
the petition being devoid of any merit on 24th may 1972
anumberher writ petition number o.p. number 6423 filed by one of the
persons integrated from the district board services against
the present appellants and others was also dismissed by
justice isaac on 27th june 1973. a writ appeal filed
against the order of justice isaac in o.p. number 1431 of 1970
was summarily dismissed by the bench of the kerala high
court. while the earlier judgments were all decided against the
respondents the kerala high companyrt in the judgment under
appeal took a different view. the decision under appeal
proceeds on the basis that a regrettable mistake crept into
the judgment in o.p. number 1431 of 1970 and the earlier deci-
sion proceeded on the basis that there was a iii grade
mentioned in g.o. 814 dated 17th numberember 1962. the high
court was of the view that there was a iii grade under the

o. above referred to the earlier decision missed the fact
that these grades were number applicable on 1st january 1962.
though g.o. 814 of 1962 was number placed before us we are number
sure whether there was any mistake in the earlier judgment
for the g.o. ms 97/67 dated 18th march 1967 refers to
persons being transferred from the malabar district board
as panchayat executive officers iii grade.


civil appellate jurisdiction civil appeal number 1174 of
1974.  from the judgment and order dated the 4-4-1974 of the
delhi high companyrt in wealth tax ref. number 5 of 1972 . m. mehta and p.l. juneja for the appellant. c. sharma m.l. khanna anup sharma miss jaswal k.k. and k.r. jagaraja and d.k. jain for the respondent. the judgment of the companyrt was delivered by
bhagwati j.--this appeal raises a rather difficult but
interesting question of law relating to valuation for the
purpose of the wealth tax act 1957 of leasehold interest in
land when there is a companyenant in the lease that the
lessee shall number be entitled to assign the leasehold inter-
est without obtaining the prior approval in writing of the
lesson and the lessor shall be entitled to claim and recov-
er from the lessee a certain specified proportion of the
unearned increase in the value of the land at the time of
the assignment. 13--436sci/77
the companytroversy in this appeal relates to the assess-
ment year 1968-69 the relevant valuation date being 31st
december 1967. the assessee is assessed to wealth tax as
an individual. his net wealth on the. valuation date
included a property situate on plot number 12 block 39 kauti-
lya marg chanakyapuri. the property companysisted of leasehold
interest in the land together with a house built upon it. the land belonged to the president of india and it was
leased by the president of india to one vashesharan devi on
the terms and companyditions set out in an agreement of lease
dated 30th december 1954 and the leasehold interest was
acquired from vashesharan devi by the assessee. the premium
for the grant of the lease was rs. 24400/- and the annual
rent was fixed at rs. 610/- subject to. certain variations. the terms and companyditions of the lease are a little important
and so far material they may be reproduced as follows
13. the lessee shall before any assign-
ment or transfer of the said premises hereby
demised or any part thereof obtain from the
lessor or such officer or body as the lessor
may authorise in this behalf approval in
writing of the said assignment or transfer and
all such assignees and transferees and the
heirs of the lessee shall be bound by all the
covenants and companyditions herein companytained and
the answerable in all respect therefore. provided also that the lessor be enti-
tled to claim and recover a portion of the
unearned increase  i.e. the difference between
the premium already paid and current market
value  in the value of land at the time of
transfer  whether such transfer is an entire
site or only a part thereof  the amount to
be recovered being 50 per cent of the unearned
increase. the lessor shall have a pre-emptive
right to the property after deducting 50 per
cent of the unearned  torn  said. the assessee companystructed a large building on the land and
the question arose as to how the leasehold interest of the
assessee in the land together with the building should be
valued. this property had been valued in the past assess-
ment years at rs. 600000/- and the assessee had accepted
this valuation and number challenged it. but in the assessment
for the assessment year. 1968-69 the assessee valued this
property in its return of net wealth at rs. 452000/- on
the. basis of a certificate obtained from m s anand apte
and jhabvala architects who are approved valuers recog-
nised by the department. the architects estimated the value
of the property at rs. 582268/and from this figure they
deducted a sum of rs. 130000/- representing 50 per cent of
the unearned increase in the value of the land which under
the terms and companyditions of the lease. belonged to the
lessor and arrived at the value of rs. 452000/-. the
wealth tax officer did number accept the estimate of the valua-
tion made by the architects and taking the annual rent of
rs. 30000/- fetched by the property as the basis companyputed
the net annual rent at rs. 82956/-
and arrived at the figure of rs. 829560/- as the value of
the property by applying the multiple of ten. to the annual
rental value of rs. 82956/-. the wealth tax officer re-
jected the claim of the assessee to deduct from the value
of the property 50 per cent of the unearned increase in the
value of the land on the ground that this claim was based
merely on hypothetical presumptions but reduced the value
off the property from rs. 829560/- to rs. 600000/-
since that was the figure accepted by the revenue in the
past assessment years. the assessee challenged the valua-
tion made by the wealth tax officer in an appeal preferred
before the appellate assistant companymissioner but the
appeal was unsuccessful as the appellate assistant companymis-
sioner took the same view as the wealth tax officer. the
tribunal also in further appeal affirmed the same view
holding that the fact that the assessee might have to pay
50 per cent of the unearned increase to the lessor does number
affect the valuation of the property under section 7 of the
wealth tax act and the words used in that section make it
clear that the estimate. which should be made by the wealth
tax officer is. of the gross price and hence numberpart of
the unearned increase was deductible in companyputing the value
of the property for the purpose of the wealth fax act. the
tribunal also upheld the rental method of valuation of the
property and finding that the valuation of rs. 600000/-
adopted by the wealth tax officer was even less than eight
times the annual rental value of rs. 82956/- the tribunal
declined to interfere with the valuation made by the wealth
tax officer. the assessee thereupon applied to the tribunal for
making a reference to the high companyrt and on the application
of the assessee the following question of law was referred
by the tribunal for the opinion of the high companyrt
whether on the facts and in the circum-
stances of the case the tribunal was justi-
fied in law in taking the view that 50 of
the unearned increase payable to the lessor of
the land formed part of and was number deducti-
ble out of the valuation of the property for
the purposes of wealth-tax act ? the high companyrt took the view that the liability to pay 50
per cent of the unearned increase in the value of the land
to the lessor at the time of the assignment was a disadvan-
tage attached to the leasehold interest in the land and
hence its value was liable to be deducted from the value of
the property in arriving at the net wealth of the assessee
and on this view it answered the question in the negative
in favour of the assessee. this led to. the filing of the
present appeal by the revenue after obtaining a certificate
of fitness from the high companyrt. it would be companyvenient at the outset to refer to the
relevant provisions of the wealth tax act 1957 before
we .address ourselves to the question which arises for
determination in the appeal the wealth tax act 1957 was
passed by the parliament in exercise of the legislative
power companyferred under entry 86 of list i of the seventh
schedule to the companystitution and as pointed out by shah
j. ih sudhir
chandra nawa v. wealth tax officer calcutta 1  wealth tax
is a tax imposed on the capital value of the assets of
individuals and companypanies on the valuation date  it
is imposed on the total assets which the assessee owns and
it is levied on the value of those assets. section 3 is the
charging section and it provides that subject to the other
provisions companytained in the act there shah be charged for
every assessment year companymencing on and from the 1st day of
april 1957 a taxin respect of the net wealth on the companyre-
sponding valuation date of every individual hindu undivided
family and companypany at the rate or rates specified in the
schedule. thus wealth tax is a tax on the net wealth of
the assessee on the valuation date. net wealth is de-
fined in section 2 m  to mean the amount by which the
aggregate value companyputed in accordance with the provisions
of this act of all the assets wherever located belonging
to the assessee on the valuation date including assets
required to be included in his net wealth as on that date
under this act is in excess of the aggregate value of all
the debts owed by the assessee on the-valuation date other
than debts failing within certain specified categories. the
word asset used in section 2 m  is of the widest signifi-
cation and under section 2 e  it includes property of every
description movable or immovable barring certain excep-
tions which are number material for our purpose.- what is
therefore necessary for the purpose of determining the net
wealth of the assessee is. first to companypute the aggregate
value of all assets belonging to the assessee in accordance
with the provisions of the act and then to deduct from it
the aggregate value of all the debts and the resultant
which is obtained would be the net. wealth assessable to
tax. section 7 sub-section  1  lays down the. mode of
determination of the value of an asset for the purposes of
the act and it says that subject to any rules made in this
behalf the value of any asset other than cash shall be
estimated to be the price which in the opinion of the
wealth tax officer it would fetch if sold in the open market
on the valuation date. number plainly one of the assets
belonging to the assessee in the present case was the lease-
hold interest in the land together with the building upon
it and for the purpose of companyputing the net wealth of the
assessee it was necessary to determine the value of this
asset. the question which must therefore be asked in
terms of section 7  1   is what would be the price which
this asset would fetch if sold in the open market on the
valuation date ? this question cannumber be satisfactorily
answered unless we first determine what is the nature of
this asset what is the interest in property qualitative as
well as quantitative which this asset represents ? the asset companysists of leasehold interest of the asses-
see in the land together with the building companystructed upon
it. the building of companyrse belongs to the assessee
having been companystructed by him and the determination of its
value should number present any difficulty because there are
recognised methods of valuation of buildings. the diffi-
culty however arises. in regard to valuation of the
leasehold interest in-the land. the leasehold interest is
held by the assessee. under a lease-deed executed by the
president of india and apart from
 1  69 i.t.r. 897.
clause  13  which we have reproduced above it is an ordi-
nary leasedeed of the usual kind. clause  13   of the
lease-deed provides that the assessee shall number be entitled
to assign the leasehold interest in the land without obtain-
ing the prior approval in writing of the lessor and 50 per
cent of the unearned in.crease in the value of the land at
the time of the assignment shall be claimable by the lessor
and moreover if the lessor so desires he shall have pre-
emptive right to purchase the property after deducting 50
per cent of the unearned increase in the value of the land. does this companyenant merely impose a personal obligation on
the lessee which arises on assignment of the leasehold
interest or it is a companyenant running with the land ? that
is a question which has a direct bearing on the valuation
of the leasehold interest. number the last portion of the
first paragraph of clause  13  provides that all such
assignees and transferees  shall be bound by all the
covenants and companyditions herein companytained and. be answerable
in respect therefore. this means that whenever an assign-
ment of the leasehold interest is made by the lessee the
assignee would be bound by all the companyenants companytained in
the lease-deed and these would indisputably include the
covenant in clause  13  . clause  13   would equally bind
the assignee and if the assignee in his turn wants. to
assign his leasehold interest in the land he would have to
obtain the prior approval in writing of the lessor to such
assignment and the lessor would be entitled to claim 50 per
cent of the unearned increase in the value of the land. this indeed was number disputed on behalf of the revenue. the companyenant in clause  13  is therefore clearly a companye-
nant running with the land and it would bind whosoever is
the holder of the leasehold interest for the time being. it
is a companystituent part of the rights and liabilities and
advantages and disadvantages which go to make up the lease-
hold interest and. it is an incident which is in the nature
of burden on the leasehold interest. plainly and indis-
putably it has the effect of depressing the value which the
leasehold interest would fetch if were free from this
burden or disadvantage. therefore when the leasehold inter-
est in the land has to be valued this burden or disadvan-
tage attaching to the leasehold interest must be duly dis-
counted in estimating the price which the leasehold interest
would fetch. to value the leasehold interest on the basis
that this burden or disadvantage were to be ignumbered would be
to value an asset different in companytent and quality from that
actually owned by the assessee.--this was the principle
applied by the judicial companymittee in companyrie v. macdemott 1
an appeal from australia where the question arose as to how
certain land granted by the government of queensland to the
trustees of the acclimatisation society of queensland to be
used only for the purpose of the society should be valued on
resumption by the government. the trustees had numbergeneral
power of sale but they were by statute authorised to sell
any part of the land to the local authority and to the
national agricultural and industrial association. it was
held by the judicial companymitte that in view of this restric-
tion on the nature of the interest of the trustees in the
land the trustees were number entitled upon resumption of
the land by the government to be paid unrestricted. free-
hold value of
 1  1914 a.c. 1056.
the land but only the value of the land to the trustees
under the companyditions upon which they held it. the judicial
committee pointed out that if the owner holds the property
subject to restrictions it is a necessary point of enquiry
how far these restrictions affect the value and the proper-
ty cannumber be valued as if it were unrestricted in any way. the burden or limitation attaching to the leasehold interest
in the present case must therefore be taken into account
in arriving at the value of the leasehold interest and it
cannumber be valued ignumbering the burden or limitation. this problem can also be looked at from a slightly
different angle and this approach too would throw some light
on the true nature of the leasehold interest required to be
valued. let us approach the question from the point of view
of the lessor. what is the nature of the lessors interest
in the land ? the lessor has undoubtedly the reversion
but companypled with it is also the right to 50 per cent .of the
unearned increase in the value of the land at the time of
assignment of the leasehold interest by the lessee as also
the pre-emptive right to the land after deducting 50 per
cent of the unearned increase from the price obtainable by
the lessee. this is the asset of the lessor which would
have to be valued when the lessor is sought to be assessed
to wealth tax. the right to 50 per cent of the unearned
increase on assignment of the leasehold interest would
certainly add to the value which the reversion would other-
wise fetch in the open market. number once it is granted that
under the lease deed the lessor has a bundle of rights
which includes something more than the reversion that
something would necessarily be subtracted from the inter-
est of the lessee and to that extent the interest of the
lessee would stand reduced. the interest of the lessee
would be the leasehold interest minus that something. what goes to augment the interest of the lessor would companyre-
spondingly reduce the interest of the lessee and it cannumber
be taxed as the wealth of both the lessor and the lessee. it would be includable in the net wealth of the lessor and
hence it cannumber at the same time form part of the wealth of
the lessee and must be subtracted in determining the nature
and extent of the interest of the lessee. that takes us to the question as to how the leasehold
interest of the assessee with the burden or limitation
attaching under clause  13  of the lease-deed should be
valued. it is clear from the language of section 7 sub-
section  1   that what the revenue is required to do for the
purpose of determining the value of an asset is to assume
that the asset which is to be valued is being sold in the
open market and to fix its value for the purpose of wealth
tax upon that hypothesis. number whenever the value of an
asset has to be determined on the basis of a hypothetical
sale the companyrt has necessarily to embark upon speculations
which may be quite difficult and in some cases even arti-
ficial. here the asset to be valued is the leasehold inter-
est in the land with the burden or restriction companytained in
clause  13  of the lease deed and the inquiry has there-
fore to be directed to the question as to what is the
price which this asset would fetch if sold in the open
market. what would be the realisable value of this asset
? it would indeed be difficult to speculate as to what
the leasehold interest in the land would fetch in the open
marker when it is affected by the burden or restriction
contained in clause  13  of the lease deed. if the lease-
hold interest were free from this burden or restriction it
would be companyparatively easy to determine its market value
for there are recognised methods of valuation of leasehold
interest but where. the leasehold interest is cut down by
this burden or restriction and some right of interest is
abstracted from it the problem of valuation becomes a
difficult one and some method has to be evolved for resolv-
ing it. the only way it can be done in a case of this kind
is by taking the market value of the leasehold interest as
if it were. unencumbered or unaffected by the burden or
restriction of clause  13  and deducting from it 50 per
cent of the unearned increase in the value of the land on
the basis of the hypothetical sale as representing the
value of such burden or restriction. there is also one other companysideration which reinforces
the adoption of this method of valuation. when for the
purpose of valuation of the leasehold interest it is as-
sumed that the leasehold interest is sold in the open
market the price received does number in its entirety belong
to the assessee. fifty per cent of the unearned increase in
the value of the land is diverted to the lessor by virtue of
the paramount title companytained in clause  13  and when re-
ceived by the assessee it belongs to the lessor. it is in
truth and substance companylected by the assessee on behalf of
the lessor. what is received by the assessee on his own
account is only the price less 50 per cent of the unearned
increase in the value of the land and that represents the
net realisable worth of the asset in the hands of the asses-
see. the revenue companytended that payment of 50 per cent of
the unearned increase in the value of the land to the lessor
is really an instance of application of the price received
by the assessee and number diversion of a part of the price by
paramount title and hence the whole of the price must be
taken as the measure of the wealth of the assessee. but
this companytention is in our opinion number well founded and
cannumber be sustained. the true test for determining whether
a payment made by an assessee out of an amount received by
him is an application of part of the amount which belongs to
him or it is payment of an amount which is diverted before
it reaches the assessee so that at the time of receipt it
belongs to the payee and number to the assessee has been
explained by hidayatullah j. in c. 1. t.v. sitadas tirath-
das 1  in the following words
in our opinion the true test is wheth-
er the amount sought to be deducted in
truth never reached the assessee as his
income. obligations numberdoubt there are in
every case but it is the nature of the. obli-
gation which is the decisive fact. there is a
difference between an amount which a person
is obliged to apply out of his income and an
amount which by the nature of the obligation
cannumber be said to be a part of the income of
the assessee. where by the obligation income
is diverted before it reaches the assessee it
is deductible but where the income is re-
quired to be applied to discharge an obliga-
tion after such income reaches the
41 i.t.r. 367.
assessee the same companysequence in law does
number follow. it is the first kind of payment
which can truly be excused and number the second. the second payment is merely an.obligation to
pay anumberher a portion of ones own income
which has been received-and is since applied. the first is a case in which the income never
reaches the assessee who even if he were to
collect it does so number as part of his in-
come but for and on behalf of the person to
whom it is payable. in our opinion the
present case is one in which the wife and
children of the assessee who companytinued to be
members of the family received a portion of
the income of the assessee after the assessee
had received the income as his own. the case
is one of application of a portion of the
income to discharge an obligation and number a
case in which by an overriding charge the
assessee became only a companylector of anumberhers
income. it is clear on the application of this test that in the
present case 50 per cent of the unearned increase iii the
value of the land would be diverted to the lessor before it
reaches the hands of the assessee as part of the price. the
assessee holds the leasehold interest on companydition that if
he assigns it 50 per cent of the unearned increase in the
value of the land will be payable to the lessor. that is
the companydition on which he has acquired the leasehold inter-
est arid hence 50 per cent of the unearned increase in the
value of the land must be held to belong to the lessor at
the time when it is received by the assessee and it would
number be part of the net realisable worth of the leasehold
interest in the hands of the assessee. if a question is
asked as to what is the real wealth of the assessee in terms
of money so far as the leasehold interest is companycerned the
answer would inevitably be that it is the price less 50 per
cent of the unearned increase in the value of the land. it
is difficult to see how 50 per cent of the unearned increase
in the value of the land which belongs to the lessor can be
regarded as part of the wealth of the asses.see. the posi-
tion would undoubtedly be different where a payment is made
by an assessee which is an application of a part of the
price received by him. where such is the case the whole of
the price would represent the net realisable worth of the
asset in the hands of the assessee and what is paid out by
the assessee would be merely a disbursement made after the
price reaches the assessee as his own property. that was
the position in pardit lakshi kant jha v. companymissioner of
wealth-tax bihar 1  where the question arose whether the
expenditure in companynection with brokerage companymission or
other expenses which would be liable to be incurred by the
assessee in effectuating a sale would be deductible from the
market value of the shares in determining their value for
the purpose of assessment to wealth tax. this companyrt held
that in companyputing the value of the shares the assessee is
number entitled to deduction of brokerage and companymission from
the valuation of the shares as given inthe stock exchange
quotations or quotations furnished by well knumbern brokers. it was pointed out by this companyrt that
 1  90 i.t.r. 97.
it is number the amount which the vendor would receive
after deduction of this expense but the price which the
asset would fetch when sold in the open market which would
constitute the value of the asset for the purpose of section
7 1  of the act.


civil appellate jurisdiction civil appeal number 1543 of
1969.
appeal by special leave from the judgment and order
dated 13-8-1968 of the mysore high companyrt in c.r.p. number
931/67. b. datar and lalit bhardwaj for the appellants

n. bhat for the respondents. the judgment of the companyrt was delivered by
kailasam j.-this appeal is by special leave granted by
this companyrt against the judgment and order of the high companyrt
of mysore in c.r.p. number 931 of 1967 allowing a revision
against the order passed by the civil judge mangalore in

i.a. number 2266 of 1966 in o.s. number 91 of 1950.
the facts of the case may be briefly stated. the
parties to this litigation are governed by the aliyasanthana
law prevalent in the district of south kanara. they were
members of a kutumba descended from a companymon ancestress by
name manjekke. one parameshwari and her son and daughter
instituted original suit number 91 of 1950 before the companyrt of
the subordinate judge at south kanara for partition of
properties in accordance with the provisions of the madras
aliyasanthana act 1949  madras act ix of 1949 . the suit
was dismissed by the trial companyrt upholding the defence
raised that a certain award decree made in original suit number
314 of 1924 on the file of the district munsiff mangalore
amounted to a partition within the meaning of sub-section
 6  of section 36 of the madras aliyasanthana act and
therefore anumberher suit for partition was number maintainable. though the trial companyrt dismissed the suit holding that the
suit for partition was number sustainable it proceeded to
record findings determining the shares to which the members
of several branches are entitled in the event of there being
a decree for partition. on appeal by the plaintiffs the high companyrt of karnataka
reversed the decision of the subordinate judge and held that
the award decree in original suit number 314 of 1924 on the
file of the district munsiff
mangalore did number amount to a partition and that the suit
for partition was maintainable. the high companyrt passed a
preliminary decree on 28th june 1961 and remanded the suit
for further proceedings. the advocates on both sides agreed
regarding the shares of the parties and the companyrt directed a
preliminary decree for partition and specified the shares as
found by the trial companyrt in paragraph 17 of its judgment. the shares were determined on a joint memo filed by the
parties on 25th september 1963. the shares allotted to
defendants 22 to 24 were 85176 out of a total of 615264
shares. defendants 22 23 and 24 are all male members of the
kutumba and are nissanthathi kavaru. the 24th defendant
died before the preliminary decree was passed on 10th june
1957 and his wife and children were brought on record as
legal representatives. the 23rd defendant died on 9th march
1962 after the passing of the preliminary decree. his wife
and children were brought on record as legal
representatives. during the final decree proceedings the
legal representatives of the 24th respondent filed r.i.a. number 2259 of 1966 and the representatives of the 23rd
defendant filed r.i.a. number 2266 of 1966 claiming that out of
the share allotted to the kavaru of defendants 22 to 24
one-third representing the share or interest of the 24th and
the 23rd defendants be allotted to them. this petition was
opposed on the ground that each one of the defendants 22 23
and 24 was a separate nissanthathi kavaru and on the death
of each of the defendants 24 and 23 his share or interest
devolved upon the santhathi kavarus nearest to him to which
defendants 11 12 and 16 belonged. the plea of the 22nd
defendant was that all the three defendants 22 23 and 24
constituted one single nissanthathi kavaru to which under
the preliminary decree one single or joint share was
allotted and therefore the said share survived to the last
surviving member thereof  22nd defendant  and that no
devolution on a santhathi kavaru under sub-section  5  of
section 36 is possible until the last member of the
nissanthathi kavaru viz. the 22nd defendant dies. the trial companyrt found that in the high companyrt decree
dated 20-6-1961 defendants 22 to 24 were allotted shares
jointly. it rejected the companytentions of both the applicants
i.e. the legal representatives of defendants 23 and 24 as
well as the surviving defendant 22 holding that defendants
22 23 and 24 formed three different nissathathi kavarus as
their mother was dead at the time of the filing of the suit
and partition was effected and there was undivided interest
in the property when they died so as to attract the
provisions of
section 7 2  of the hindu succession act. the trial companyrt
dismissed both i.as. 2259 2266/66. the high companyrt on appeal while agreeing with the
conclusion arrived at by the civil judge that the clear
intention of defendants 22 23 and 24 was that one share be
jointly alloted to three of them together held that when the
24th defendant died he had an undivided interest in the
properties of the kavaru of himself and defendants 22 and 23
and that the said undivided interest quantified as provided
by the explanation to sub-section  2  of section 7 of the
hindu succession act and would devolve by intestate
succession under the said succession act. similarly when the
23rd defendant died he had an undivided interest in the
property jointly belonging to himself and the 22nd
defendant. that undivided interest also got quantified under
section 7 2  of hindu succession act. the high companyrt allowed
the appeals holding that the property descended according to
the rules of intestate succession companytained in the hindu
succession act. in this appeal the main companytention of the learned
counsel for the appellants is that the high companyrt was in
error in holding that defendants 22 23 and 24 were male
members of one nissanthathi kavaru and that the three
defendants did number companystitute three different nissanthathi
kavarus. on a companysideration of the plaint the written
statement the companysent memo and the preliminary decree
passed by the high companyrt we agree with the companyclusion
arrived at by the high companyrt. the suit was filed by one
parameshwari and her son and daughter as plaintiffs in o.s. number 91 of 1950 praying for a partition of the properties and
for allotment of her share to her. in the suit defendants
22 23 and 24 were made parties as they belonged to the
kavaru of their mother. in paragraph 10 of the written
statement defendants 22 23 and 24 stated that they have no
objection to the partition of the family properties
according to the rights of the parties but submitted that in
the event of partition their share should be allotted to
them and further the plaintiffs should be directed to
surrender possession of the properties in schedule i of the
written statement. the written statement was filed jointly
by the three defendants and their plea was that in the event
of partition their share should be allotted to them. the
statement clearly indicates that the three defendants
together asked for allotment of their shares in the family
properties. there was numberdispute as to the quantum of shares
to the parties. the trial companyrt has recorded
the learned advocates on both sides are agreed
that the suit be decreed for partition in respect of
the plaint
schedule immovable properties they are also agreed
that the shares be divided as indicated in para 17 of
the trial companyrts judgment. we direct that a
preliminary decree for partition of the plaint schedule
immovable properties be drawn up accordingly. para 17 of the trial companyrts judgment reads
in case this suit is to be decreed the shares to
which the several parties are entitled to will be as
set out in the joint memo filed by the parties on 25-9-
1963 which are as follows. shares of defendants 22 23 and 24 are mentioned as
85176 out of total share of 615264. on a companysideration of
the pleadings the companysent memo and the preliminary decree
the high companyrt came to the companyclusion that the shares were
allotted to the three defendants jointly. we agree with the
conclusion arrived at by the high companyrt and hold that the
three defendants were allotted jointly a share in the
partition. the learned companynsel for the appellant submitted that
this finding of fact would number companyclude the appeal. he
submitted that in law there was numberundivided interest in the
property which defendants 24 and 23 owned at the time of
their death as required under section 7 2  of the hindu
succession act. the submission on this aspect is two fold.  1  a  defendants cannumber claim that they were
members of the kavaru of their mother as
their mother was dead at the time when the
partition suit was filed

under the explanation to sec. 35 2  a male
member of a kutumba is deemed to be kavaru. therefore each one of the three members would
constitute a separate kavaru and therefore
there was numberundivided interest as amongst
them. the filing of partition suit by one of the
members of the kutumba would have the effect
of effecting the severance of the status and
therefore there was numberlonger any undivided
interest between the several members of the
kutumba. before dealing with the companytentions it is necessary to
briefly refer to the salient features of aliyasanthana law. in the well-knumbern treatise on malabar and aliyasanthana law
by p. r. sundara aiyar a distinguished judge of the madras
high companyrt and edited by

sitarama rao an eminent lawyer of the madras high companyrt
who hailed from the south kanara the aliyasanthana law is
stated to imply a rule of inheritance under which property
descends in the line of nephews. the term aliyasanthana
law is the exact canarese equivalent of the malayalam term
marumakkathayam. aliyasanthana law differs but slightly from
the marumakkathayam system. in its main features viz. impartibility descent in the line of females and
numberrecognition of marriage as a legal institution it
completely agrees with the marumakkathayam law. in
aliyasanthana law the males are equal proprietors with
females and joint management is recognised while the
marumakkathayam law does number recognise a right to join
management. the succession to the separate property of an
individual member in aliyasanthana law is to the nearest
heirs and number to the tarwad as in the marumakkathayam law. the succession of the heirs of the separate property is
recognised by the madras aliyasanthana act 1949 sections
18 to 24. on the facts of the present case it is number
disputed that defendants 22 23 and 24 have enjoyed the
interest as nissanthathi kavaru and on partition are
entitled only to life-interest in the properties allotted to
them under section 36 3  of the madras aliyasanthana act. the question that arises for companysideration is how far the
aliyasanthana act regarding partition and succession has
been affected by the hindu succession act. the hindu
succession act came into force on 17th june 1956. the
preamble states that the act amends and modifies the law
relating to intestate succession among hindus. though the
preamble refers only to intestate succession as the title
hindu act indicates it relates to the law of succession
among hindus and number merely to intestate succession as
mentioned in the preamble. the law has brought about radical
changes in the law of succession. the law is applicable to
all hindus as provided in section 2 of the act. it is made
clear that the law is applicable number only to persons
governed by dayabhaga and mitakshara law but also to persons
governed by aliyasanthana marumakkathayam and nambudri
systems of hindu law. section 4 of the act gives overriding
application to the provisions of the act and lays down that
in respect of any of the matters dealt with in the act all
existing laws whether in the shape of enactment or otherwise
which are inconsistent with the act are repealed. any other
law in force immediately before the companymencement of this act
ceases to apply to hindus in so far as it is inconsistent
with any of the provisions companytained in the act. it is
therefore clear that the provisions of aliyasanthana law
whether customary or statutory will cease to apply in so
far as they are inconsistent with the provisions of the
hindu succession act. the scheme of the hindu succession act in the matter of
succession to the property of hindu dying intestate is
provided in sections 8 to 13. sections 15 and 16 provide for
the succession to the property of a female dying intestate. section 17 specifically provides for application of the
hindu succession act to persons governed by malabar and
aliyasanthana law. section 14 does number relate to succession
but provides that any property possessed by a female hindu
whether acquired before or after the companymencement of this
act shall be held by her as full owner thereof and number as
limited owner. section 7 2  is the section which relates to the
devolution of an undivided interest in the property of a
kutumba or kavaru and may be extracted in full. 7 2  when a hindu to whom the aliyasanthana law
would have applied if this act had number been passed dies
after the companymencement of this act having at the time
of his or her death an undivided interest in the
property of kutumba or kavaru as the case may be his
or her interest in the property shall devolve by
testamentary or intestate succession as the case may
be under this act and number according to the
aliyasanthana law. explanation-for the purposes of this sub-section
the interest of a hindu in the property of a kutumba or
kavaru shall be deemed to be the share in the property
of the kutumba or kavaru as the case may be that
would have fallen to him or her if a partition of that
property per capita had been made immediately before
his or her death among all the members of the kutumba
or kavaru as the case may be then living whether he
or she was entitled to claim such partition or number
under the aliyasanthana law and such share shall be
deemed to have been allotted to him or her absolutely. under the customary law and under the madras
aliyasanthana act 1949 the undivided interest in the
property of a hindu in aliyasanthana kutumba or kavaru
devolved according to the provisions of the aliyasanthana
law but after the introduction of sec. 7 2  the devolution
by testamentary or intestate succession is under the
provisions of the hindu succession act. the explanation to
sec. 7 2  provides that the interest in the property of the
kutumba or kavaru of a hindu shall be deemed to be the share
in the property of the kutumba or kavaru as the case may
be that would have fallen to him or her if a partition of
that property per capita had been made immediately before
his or her death among all the members of the kutumba or
kavaru as the case may be then living whether he or she
was entitled
to claim such partition or number under the aliyasanthana law
and such share shall be deemed to have been allotted to him
or her absolutely. the result of the explanation is that the
undivided interest in the property of the hindu in the
aliyasanthana kutumba or kavaru shall devolve as provided
for under the hindu succession act and that the share of the
hindu shall be deemed to have been allotted to him
absolutely. the explanation to sec. 30 of the hindu
succession act provides that a member of an aliyasanthana
kutumba or kavaru can dispose of his interest in the kutumba
properties by a will. under the aliyasanthana law the
individual cannumber dispose of his interest in the kutumba by
a will. explanation to sec. 30 1  enables the male hindu in
a kutumba or kavaru to dispose of his interest in a kutumba
or kavaru which is deemed to be property capable of being
disposed of by him. thus while sec. 7 2  provides that when
a hindu to whom the aliyasanthana law would have applied if
this act had number been passed dies after the companymencement of
this act having at the time of his or her death an
undivided interest in the property of kutumba or kavaru as
the case may be under the hindu succession act sec. 30
enables the male hindu to dispose of his undivided interest
in a kutumba or kavaru by a will. while these two sections
relate to undivided interest in the property of the kutumba
or kavaru sec. 17 deals with the succession to the separate
property of a hindu male under the aliyasanthana law. it
provides that sections 8 10 15 and 23 shall have effect
with certain modifications in relation to persons who would
have been governed by the aliyasanthana law. section 8
provides that the property of a male hindu dying intestate
shall devolve as specified in the section. the succession to
the property of a male hindu belonging to a kutumba or
kavaru of aliyasanthana law dying intestate would be
governed by the provisions of sec. 8 as modified by sec. 17
the effect being that the succession as provided for under
the aliyasanthana law would number be applicable. section 10
provides for the distribution of property among heirs in
class i of the schedule. section 15 provides the general
rule of succession in the case of hindu females. the rule
as to the succession is also made applicable to hindu female
under the aliyasanthana law with the modifications provided
for under sub-sec.  2  of section 17. section 23 of the
hindu succession act is number applicable to a hindu governed
by aliyasanthana law. thus sec. 17 which makes sections 8
10 15 and 23 applicable with certain modifications to a
hindu under the aliyasanthana law provides for succession of
the separate property of a hindu male and a female. after
the companying into force of the hindu succession act the
provisions of section 7 2  are applicable as regards
undivided interest of a hindu governed by aliyasanthana law
8--531sci/79
while the provisions of the explanation to section 30 are
applicable in the case of a will relating to his interest in
the family property. section 17 provides that sections 8
10 15 and 23 with modifications will apply to the separate
property of a hindu under the aliyasanthana law. section 14 enlarges the property possessed by a female
hindu whether acquired before or after the companymencement of
the hindu succession act by providing that she will hold the
property as full owner and number as a limited owner. this
provision is applicable to hindu females and does number have
the effect of enlarging a limited estate in the hands of a
hindu male. the hindu male will be entitled only to the
limited rights as provided for under the law that is
applicable to him. but when once the succession opens by the
death of the hindu sec. 7 2  provides that the share in the
undivided interest of the hindu would devolve on his heirs
under the hindu succession act absolutely. a hindu under
section 30 of the hindu succession act is also companyferred the
right to disposing of by will his interest in the kutumba or
kavaru. while a hindu dies intestate his undivided interest
devolves absolutely on his heirs in the case of his
separate property the succession is governed by the
provisions of sections 8 10 and 15 of the act as modified
by section 17.
it may be numbered that regarding the separate property of
a hindu the madras aliyasanthana act provides that the
provisions of sections 19 20 21 22 23 and 24 of the act
would be applicable. the separate property does number revert
back to the kutumba or kavaru of the aliyasanthana family. at the time of the partition if any kavaru taking a share is
a nissanthathi kavaru it shall have only a life-interest in
the properties allotted to it under certain circumstances
and the property would revert back to a santhathi kavaru if
it is in existence. section 36 3  of the madras
aliyasanthana act provides that the properties allotted to a
nissanthathi kavaru at a partition and in which it had only
a life-interest at the time of the death of the last member
shall devolve upon the kutumba or where the kutumba has
broken up at the same or at a subsequent partition into a
number of kavarus upon the nearest santhathi kavaru or
kavarus. the devolution of the property allotted to a
nissathati kavaru which has only a life-interest devolves
upon a kutumba or the nearest santhathi kavaru. this mode of
devolution prescribed by section 36 5  of the aliyasanthana
act has to give way to the provisions of section 8 of the
hindu succession act which prescribed a different mode of
succession. the effect of the provisions of the hindu succession
act above referred to is that after the companying into force of
the hindu succession act an undivided interest of a hindu
would devolve as provided for
under sec. 7 2  while in the case of separate property it
would devolve on his heirs as provided for in the hindu
succession act. even though a nissanthathi kavaru might have
a limited interest as the devolution prescribed for in the
madras aliyasanthana act is numbermore applicable the
devolution will be under the hindu succession act. in this case the property has been found to be
undivided as between defendants 22 23 and 24 and therefore
the position is that on the death of each one of the
defendants his undivided interest would devolve on his
heirs. the learned companynsel for the appellants relied on the
explanation to sec. 35 2  of the madras aliyasanthana act
and submitted that every male member of a kutumba shall be
deemed to be a kavaru and on filing of a suit for partition
it must be deemed that every male member of the kutumba got
himself separated. kuttumba is defined under sec. 3 c  as
meaning a group of persons forming a joint family with
community of property governed by the aliyasanthana law of
inheritance. kavaru is defined under sec. 3  b   i  and  ii
as under-
3 b  i kavaru used in relation to a female
means the group of persons companysisting of that female
her children and all her descendants in the female
line

kavaru used in relation to a male means the
kavaru of the mother of that male
in the case of defendants 22 23 and 24 who are males
the kavaru would mean the kavaru of the mother of that male. the male by himself cannumber be a kavaru under the definition. by virtue of the explanation to sec. 35 2  a male member of
a kutumba is deemed to be a kavaru for the purpose of
chapter vi. chapter vi deals with partition of kutumba. in
this case the suit was filed by parmeshwari and her two
children for the partition and separate possession of their
share of the kutumba property. when the suit is number filed by
a male member the provisions of chapter vi will number be
applicable. the deemed definition is only applicable in
considering the right to claim partition. further when the
plaintiff filed the suit there is numberpresumption that there
was a division in status of all the kavarus that companystituted
the kutumba. the filing of the suit will numberdoubt result in
the division of the status of the plaintiff kavaru but the
other kavarus may companytinue to be joint in the kutumba. whether the other kavarus companytinued to be joint in the
kavaru or number is a question of fact. in this case it is
found there is numbermaterial to hold that there was division
of status as between defendants 22 23 and 24. in this view
the companytentions of the learned companynsel for the appellants
that there was divi-
sion in status on the filing of the suit for partition or
that as the mother was dead there were separate kavarus will
have to be negatived. the reliance on explanation to sec. 35 2  will number help the appellants. in jalaja shedthi ors. v. lakshmi shedthi ors. one
and his sister and her sons were members of an aliyasanthana
kutumba. c executed a will on january 25 1957 bequeathing
his interest in favour of the appellants. on january 25
1957 the respondents issued a numberice to c stating that he
was the manager of the divided family that he was a
nissanthathi kavaru while the respondents were santhathi
kavarus as such there were only two kavarus and that they
had decided to divide the properties between c and
themselves. the respondents demanded a share belonging to
their kavaru from out of the entire movable and immovable
properties of the family. c replied on january 24 1957 that
there were only two kavarus in the family and both the
kavarus were nissanthathi kavarus. c also expressed that he
had numberobjection to the claim for partition made by the
respondents and was prepared to effect it provided the
respondents companyperated. c subsequently died on february 13
1957 after the companying into force of the succession act. on march 23 1957 the appellants gave a numberice to the
respondents claiming a separate share under cs will. the
respondents replied to the numberice on the same day denying
that the appellants had any share because according to them
c was entitled only to a life-interest under the
aliyasanthana law. it was held by this companyrt that there was
neither a kutumba number can c be a kavaru as the two kavarus
after the division in status became only one kavaru viz. that of respondent number 1 sister of c. it was held that the
c is number a kavaru within the meaning of sec. 3 b  of the
madras act because under sec. 3 b   ii  there being no
female line it is only cs mother who can be a kavaru but
number c. if c is number a kavaru there is numberproperty of a
kavaru which can be disposed of under sec. 30 of the
succession act. even under the explanation to that section
the life-interest which c had on severance of status is number
properly capable of being disposed of by a will number companyld it
devolve by survivorship. as he is numberlonger a kavaru and had
therefore numberinterest in the property of the kavaru cs
life-interest is also number enlarged under section 7 2  of the
hindu succession act into an absolute interest. section 14
of the hindu succession act cannumber also be availed of as the
life-interest of a male under the aliyasanthana law cannumber
enlarge under section 14.
jalaja shedthi ors. v. lakshmi shedthi ors.  supra
relates to a will executed on 15th january 1958 by
chandayya shetty bequeathing his interest in favour of his
wife and children. a week after the execution of the will on
22nd january the first respondent i.e. the sister of
chandayya shetty and her children issued a numberice to
chandayya shetty stating that they had decided to divide the
properties between chandayya shetty and themselves and
demanded a share belonging to their kavaru. chandayya shetty
subsequently died on 13th february 1957. on 23rd march
1957 chandayya shettys wife and her children gave numberice
claiming a separate share under the will of chandayya
shetty. it was found that on a demand for partition there
was a division of status though partition by metes and
bounds had number taken place. there was only two kavarus and
in the circumstances it companyld number be pleaded that joint
status between other kavarus companytinued. there was therefore
numberundivided interest of a companyarcener within the meaning of
section 7  2  of the hindu succession act. if there was no
undivided interest it is clear that provisions of section
7 2  of the hindu succession act cannumber apply. in
considering the effect of the will the companyrt agreed with the
view of a full bench of the high companyrt of mysore in sundara
adappa and ors. v. girija ors. it was companytended before the full bench that by virtue
of sec. 30 1  of the hindu succession act the right of the
first defendant who had obtained a preliminary decree for
his 75/360th share of his properties became capable of being
disposed of by will and therefore the children of the first
defendant would be entitled to the share in accordance with
the terms thereof. the mysore high companyrt held that the
benefit referred to in the explanation to sec. 30 1  is
confined to the interest of a male hindu in his kutumba and
would number apply to the property obtained by him as his share
in the preliminary decree. this companyrt in approving the above
observations observed. the above statement of the law which
meets the several companytentions raised before us is in
consonance with our own reading of the provisions of the
madras act and the succession act. this companyrt rejected the
pleas that the effect of section 17 of the succession act
was number companysidered in the mysore case holding that the
question was number relevant in the case before them or in the
mysore case because sec. 17 of the succession act applies to
provisions of sections 8 10 15 and 23 which dealt with
intestacy. as we are companycerned in the present case with the
intestate succession to the estate of defendants 24 and 23
the decisions are number applicable to the facts of this case. the plea of the learned companynsel for the respondents
that even if the property of the defendants 24 and 23 were
held to be separate property the succession would be in
accordance with hindu succession act by virtue of the
provisions of sec. 17 of the hindu succession act will have
to be companysidered. chapter ii of the hindu succession act
which deals with the intestate succession is applicable to
the property of hindus and the provisions of this chapter
would prevail over any law which was in force immediately
before the companymencement of this act. therefore the
provisions relating to succession of aliyasanthana hindus
would be by the provisions of the hindu succession act and
number by the aliyasanthana law. section 7 2  and sec. 17 of
the hindu succession act deal specifically with succession
of the property of a hindu belonging to aliyasanthana
family. while sec. 7 2  relates to devolution of undivided
interest in the property of a kutumba or kavaru of a hindu
belonging to an aliyasanthana family sec. 17 makes the
provisions of sections 8 10 15 and 23 with the
modifications specified in sec. 17 to the devolution of
separate property of a hindu under the aliyasanthana law. according to the provisions of sec. 36 5  the property
allotted to nissanthathi kavaru at a partition is enjoyed by
it only as a life-interest and at the time of the death of
the last of its members shall devolve upon the kutumba. this
devolution of the life-interest is according to sec. 36 5 . when a hindu governed by the aliyasanthana law dies
possessed of a life interest after his death the property
devolves under the hindu succession act and number under the
aliyasanthana act and therefore would number revert back to the
kutumba. this companyrt in jalaja shedthi ors. v. lakshmi
shedthi ors.  supra  while deciding the rights of the
parties under a will executed by a hindu governed by
aliyasanthana law held at p. 719 similarly on the same
parity of reasoning when there are two kavarus a demand
for partition would disrupt them and chandayya shetty companyld
numberlonger claim that he had an undivided interest within the
meaning of sec. 7 2  of the succession act and if he has no
undivided interest in the property his interest cannumber be
enlarged into an absolute estate number can his interest in the
property devolve upon his heirs by intestate succession. the words underlined by us relate to intestate succession
and the companyrt has specifically stated that it was number
referring to the provisions of sec. 17 of the hindu
succession act as it related to intestate succession. these
observations relating to intestate succession are therefore
in the nature of obiter. the separate property is number
enlarged into an absolute estate under sec. 7 2  but on
death it devolves on the heirs as provided under the hindu
succession act. therefore it will number revert back to the
kutumba but only to the heirs as provided for under the
hindu
succession act.