anr. 1967 1 scr 864 tejinder kaur v. gurmit singh a
ir
1988 sc 839 vathsala v. n. manumberaran air  1969  madr
as
405 referred to. mohanmurari v. srnt. kusumkumari air  1965  m.p. 19
jamboo prasad jain v. smt. malti prabha air 1979 allahab
ad
260 pramod sharma v. smt. radha air  1976  punjab 35
overruled. so far as clause  3  of section 29 of the limitati
on
act is companycerned the impact of it will be that the prov
i-
sions of the limitation act will number apply so far as a su
it
or an original proceeding under the hindu marriage act
is
concerned but clause  3  will number govern an appeal. 149e

to an appeal under section 28 of the hindu marria
ge
act provisions companytained in section 12 clause  2  of t
he
limitation act will be applicable and therefore the ti
me
required for obtaining companyies of the judgment will have
to
be excluded for companyputing the period of limitation f
or
appeal. 149g-h
chander dev chadha v. smt. rani bala air  1979  del
hi
22 smt. sipra dey v. ajit kumar dey air  1988  cal 28 a
nd
kantibai v. kamal singh thakur air  1978  m.p. 245 r
e-
ferred to. civil appellate jurisdiction civil appeal number 708
of
1988.
from the judgment and order dated 20.2. 1987 of t
he
bombay high companyrt in s.a. number 282 of 1985.
mrs. shyamla pappu k.k. rai and mrs. indira sawhney f
or
the appellant. l. sanghi and a.k. sanghi for the respondent. the judgment of the companyrt was delivered by
oza j. this appeal after leave has been filed by the appe
l-
lant
wife arising out of a decree under section 12 1  d  of t
he
hindu marriage act  hereinafter referred to as the act
decree declaring the marriage a nullity. the respondent husband instituted a petition on 7
th
march 1984 for a declaration that the marriage of t
he
respondent with the appellant wife was a nullity under su
b-
section  1  sub-clause  d  of section 12 of the act on t
he
ground that appellant the wife at the time of marriage wi
th
the respondent was pregnant by some one other than t
he
respondent. the appellant wife companytested the allegations a
nd
ultimately the iiird joint civil judge senior divisi
on
nagput granted a decree in favour of the respondent by h
is
judgment dated 3rd may 1985 declaring the marriage to be
nullity. the appellant wife filed a regular civil appeal number 4
of 1985 on 19.7.1985 before the iind additional distri
ct
judge nagput. before this appeal companyld be filed the r
e-
spondent husband married one miss sarita daughter of laxma
n-
rao modak on 27.6.1985 and in the appeal filed by t
he
appellant the respondent raised a preliminary objecti
on
contending that after passing of the judgment and decr
ee
dated 3.5.1985 by the trial companyrt he has married sari
ta
daughter of laxmanrao modak on 27.6.1985. it was furth
er
alleged in the application that this marriage was solemnis
ed
on 27.6.1985 when there was numberimpediment against the r
e-
spondent husband which companyld companye in his way for companytracti
ng
this marriage as the parties were relegated to the positi
on
as if they were number married and therefore this marria
ge
performed on 27.6.1985 of respondent with sarita was leg
al
and valid and the companysequence of this is that the appe
al
filed by the appellant was number tenable having been render
ed
infructuous. the iind additional district judge nagpur vi
de
his order dated 17.8.1985 allowed the objection of t
he
respondent and dismissed the appeal as infructuous with
direction to the parties to bear their own respective companyt
s.
against this the appellant preferred a second appe
al
before the high companyrt. the high companyrt by its judgment dat
ed
20.2.1987 dismissed the appeal holding that as the appe
al
was filed by the appellant after the re-marriage of t
he
respondent it has become infructuous. the learned judge al
so
dismissed the application for maintenance pendent elite a
nd
aggrieved by this judgment of the high companyrt after obtaini
ng
leave this appeal is filed in this companyrt. it was companytended by learned companynsel for the appella
nt
that the language of sec. 15 clearly goes to show that
it
refers to a marriage
which has been dissolved and it also talks of fight
of
appeal against the decree. in view of this language used
in
sec. 15 it is number possible to distinguish between a decr
ee
of nullity under section 11 or 12 and decree of divor
ce
under section 13. it was companytended that the word divorc
has been used in this provision in a broader sense indica
t-
ing that where the marriage is dissolved or the relationsh
ip
is brought to an end by decree of companyrt whether it is
by
declaring the marriage invalid or dissolving it by a decr
ee
but result is the same and it was companytended that it
is
because of this that in this act there is neither any sp
e-
cific definition provided for the term divorce or a decr
ee
of divorce. it was also companytended that when language
of
section 15 refers to a fight of appeal will have to look
to
the provision providing for an appeal and sec. 28 of the a
ct
which provides for appeals against all decrees made by t
he
court in proceedings under this act. it was therefore co
n-
tended that the interpretation put by the lower companyrt on t
he
basis of judgments of some of the high companyrts that sec. will number apply to a decree under sec. 12 but would on
ly
apply when there is a decree under sec. 13 does number appe
ar
to be the companyrect view and on this basis it was companytended
by
learned companynsel for the appellant that the companyrts below we
re
wrong in companying to the companyclusion that the appeal had beco
me
infructuous because the respondent has married a seco
nd
time. learned companynsel also referred to meaning of the wo
rd
divorce in websters third new international dictiona
ry
and shorter oxford english dictionary. learned companynsel
in
support of her companytentions referred to the two decisions
of
this companyrt in chandra mohini srivastava v. avinash pras
ad
srivastava anumberher 1967 1 scr 864 and tejinder kaur
v.
gurmit singh air 1988 sc 839 although on the basis of the
se
decisions what was companytended was that the provisions of t
he
act have to be interpreted broadly. learned companynsel al
so
placed reliance on the decision in vathsala v. n. manumberara
air 1969 madras 405. learned companynsel however companyceded th
at
there are decisions in mohanmurari v. smt. kusumkumari a
ir
1965 m.p. 194. jamboo prasad jain v. smt. malti prabha a
nd
anr. air 1979 allahabad 260 and pramod sharma v. sm
t.
radha air 1976 punjab 355 where the question of section
in relation to a decree under sec. 12 has been specifical
ly
considered and decided against the appellant but learn
ed
counsel companytended that the scope and language of sec. companypled with the language of sec. 28 has number been companysider
ed
by any one of these companyrts. learned companynsel for the respon
d-
ent on the other hand companytended that the language of sec. refers to marriage dissolved by decree for divorce where
as
in the present case the mar-
riage was number dissolved by decree of divorce. the marria
ge
was declared as nullity under sections 11 and 12 of the ac
t.
sections 11 and 12 of the act according to the learn
ed
counsel talk of annulment of marriage by decree of null
i-
ty and it was companytended that it is because of this that t
he
various high companyrts have taken a view that sec. 15 will n
ot
apply to cases where a marriage is annulled by a decree
of
nullity in accordance with sections 11 or 12 of the ac
t.
learned companynsel however frankly companyceded that so far as se
c.
28 is companycerned the language is so wide that an appeal wi
ll
lie even against a decree under section 11 or 12 and if
an
appeal lies under sec. 28 even against the order or a decr
ee
passed under sections 11 or 12 the phrase if there is su
ch
a right of appeal the time for filing has expired witho
ut
an appeal having been presented are to be given its mea
n-
ing it would be clear that sec. 15 also will apply
to
decrees by which the marriage is either dissolved or a
n-
nulled i.e. decrees which are passed under sec. 12 or und
er
sec. 13. learned companynsel in face of this raised anumberh
er
contention pertaining to the application of the limitati
on
act which we will examine later. in order to understand the meaning of sec. 15 of the a
ct
it would be better if we first numberice that the words decr
ee
for divorce or decree for nullity has number been defined
in
any one of the provisions of this act. sec. 12 clause  1
of
the act reads
any marriage solemnized whether before or after the co
m-
mencement of this act shall be voidable and may be annull
ed
by a decree of nullity on any of the following groun
ds
namely--
similarly sec. 13 clause  1  of the act reads

any marriage solemnized whether before or after t
he
commencement of this act may on a petition presented
by
either the husband or wife be dissolved by a decree
of
divorce on the ground that the other party--
it is numberdoubt true that these two sections have differe
nt
phraseology. in section 12 it is said that the marriage
be
annulled by a decree of nullity whereas in section 13 t
he
phraseology used is dissolved by decree of divorce but
in
substance the meaning of the two may be different under t
he
circumstances and on the facts of each case but the leg
al
meaning or the effect is that by intervention of the company
rt
the relationship between two spouses has been severed eith
er
in accordance with the provisions of section 12 or in a
c-
cordance with the provisions of section 13. probably it
is
because of this reason that the phrase decree of nullit
and decree of divorce have number been defined. sec. 28
of
the act reads

appeal from decrees and orders  1  all decrees made
by
the companyrt in any proceeding under this act shall subject
to
the provisions of sub-section  3  be applicable as decre
es
of the companyrt made in the exercise of its original civ
il
jurisdiction and every such appeal shall lie to the company
rt
to which appeals ordinarily lie from the decisions of t
he
court given in the exercise of its original civil jurisdi
c-
tion. orders made by the companyrt in any proceeding under th
is
act under section 25 or section 26 shall subject to t
he
provisions of sub-section  3  be appealable if they are n
ot
interim orders and every such appeal shall lie to the company
rt
to which appeals ordinarily lie from the decision of t
he
court given in exercise of its original civil jurisdiction

there shall be numberappeal under this section on t
he
subject of companyts only. every appeal under this section shall be preferr
ed
within a period of thirty days from the date of the decr
ee
or order. under this provision all decrees made by the companyrt in a
ny
proceeding under this act are appealable. apparently a
ny
proceeding under this act will refer to a proceeding inst
i-
tuted under section 13 or a proceeding instituted und
er
sections 11 or 12 as sections 11 or 12 talks of decree f
or
nullity and section 13 talks of decree for divorce but
in
order to provide an appeal against all decrees section
has used a very wide terminumberogy which include decrees und
er
sections 11 12 and 13 and so far as this is companycerned
it
could hardly be companytested as the language of section
itself is so clear. it is in this companytext that we
analyse the language of section 15. it reads
divorced persons when may marry again-when a marriage h
as
been dissolved by a decree of divorce and either there is
no
fight of appeal against the decree or if there is such
fight of appeal the time for appealing has expired witho
ut
an appeal having been presented or an appeal has been pr
e-
sented but has been dismissed it shall be lawful for eith
er
party to the marriage to marry again. before we examine the phraseology dissolved by decree
of
divorce it would be worthwhile to examine the remaini
ng
part of this provision especially if there is such a fig
ht
of appeal the time for appealing has expired without
an
appeal having been presented or an appeal has been present
ed
but has been dismissed. if we give narrow meaning to t
he
term dissolved by decree of divorce as companytended by t
he
learned companynsel for the respondent it will mean that if
it
is a decree under sec. 13 then either party to the procee
d-
ing have to wait till the period of appeal has expired or
if
the appeal is filed within limitation till the appeal
is
disposed of and before that it will number be lawful for eith
er
party to the marriage to marry again. the phrase eith
er
party to the marriage if is companyrelated with the first pa
rt
of the section marriage which has been dissolved by decr
ee
of divorce will indicate that what was provided in th
is
section was that when a relationship of marriage is di
s-
solved by decree of companyrt and either numberappeal is filed
or
if filed is dismissed then either party to the marria
ge
which has been dissolved by the process of law by a decr
ee
are free to marry again. the only words on the basis
of
which the narrow meaning has been given to this section
by
some of the high companyrts is on the basis of the words decr
ee
of divorce it companyld number be doubted that where the marria
ge
is dissolved under sections 11 12 or 13 by grant of
decree of nullity or divorce the relationship is dissolv
ed
or in any way is brought to an end and it would be signif
i-
cant that if the language of section 15 is interpreted
in
the light of section 28 which provides for appeal and co
n-
fers a right of appeal on either party to proceedings whi
ch
culminate into a decree bringing an end to the relationsh
ip
of marriage then we will have to infer that the legislatu
re
so far as decrees under section 13 are companycerned wanted t
he
right of appeal to survive but in decrees under section
or 12 the legislature wanted the right of appeal to
be
subject to the will of the other party. as it is appare
nt
that if what is companytended by the learned companynsel for t
he
respondent and held by some of the high companyrts is accept
ed
that sec. 15 will number apply to cases when a decree is pass
ed
under sec. 11 or 12 it will mean that as
soon as a decree is passed the party aggrieved may appe
al
but the other. party by remarriage would make the appe
al
infructuous and therefore the right of appeal of one of t
he
parties to the decree under sec. 28 will be subject to t
he
act of the other party in cases where decree is passed und
er
sections 11 or 12 but if it were so the legislature wou
ld
have provided a separate provision for appeal when there
is
a decree under section 13 and a different provision f
or
appeal when there is a decree under sections 11 or 12 as t
he
right of appeal against a decree under sec. 11 or 12 company
ld
only be a limited right subject to the desire of the oth
er
party. the legislature in its wisdom has enacted sec. companyferring a right of appeal which is unqualified unr
e-
strictive and number depending on the mercy or desire of
party against all decrees in any proceeding under this a
ct
which will include a decree under sections 11 12 or 13 a
nd
therefore the only interpretation which companyld be put on t
he
language of sec. 15 should be which will be companysistent wi
th
section 28. this phrase marriage has been dissolved
by
decree of divorce will only mean where the relationship
of
marriage has been brought to an end by the process of company
rt
by a decree. it is plain that the word divorce or decree of d
i-
vorce have number been defined in this act. the meaning of t
he
word divorce indicated in shorter oxford english dictio
n-
ary reads
divorce--1. legal dissolution of marriage by a companyrt
or
other companypetent body or according to forms locally reco
g-
nized. 2. companyplete separation disunion of things close
ly
united me. 3. that which causes divorce 1607.
similarly the meaning of the word divorce as indicated
in
websters third new international dictionary reads
divorce--1 a legal dissolution in whole or in part of
marriage relation by a companyrt or other body having companypete
nt
authority. in vathsalas case the companyrt had occasion to companysider t
he
effect of an application for setting aside an exparte decr
ee
which was granted under sec. 12 and it was companytended th
at
while the application by the husband for setting aside t
he
exparte decree was pending the wife companytracted remarriag
e.
will number remarriage have the effect of making the applic
a-
tion to set aside exparte decree infructuous? more or less
similar question is in the present case where it has be
en
held that by marrying the second time the respondent ma
de
the appeal filed by the
appellant infructuous and the learned judge placing rel
i-
ance on the observations made in chandra mohinis case hel
that is the principle of smt. chandra mohini v. avina
sh
prasad air 1967 sc 581. the principle laid down in th
at
decision has general application. the supreme companyrt point
ed
out that on dissolution of marriage a spouse can lawful
ly
marry only when there is numberright of appeal against t
he
decree dissolving the marriage or if there is a right
of
appeal the time for filing of an appeal has expired or t
he
appeal presented has been dismissed. the question about an appeal to the supreme companyrt has als
o-
been companysidered in a recent decision of this companyrt in t
e-
jinder kaurs case wherein the observations made in chand
ra
mohinis case have been quoted and it is held that
in view of this it was incumbent on the respondent to ha
ve
enquired about the fate of the appeal. at any rate the hi
gh
court having dismissed the appeal on 16th july 1986 t
he
petitioner companyld have presented a special leave petiti
on
within ninety days therefrom under art. 133 c  of the lim
i-
tation act 1963 i.e. till 14th september 1986. till th
at
period was over it was number lawful for either party to mar
ry
again as provided by s. 15. it was incumbent on the respon
d-
ent as observed in lila guptas case  ilr 1969  1 all. 9
2
to have apprised himself as to whether the appeal in t
he
high companyrt was still pending and if number whether the peri
od
for filing a special leave petition to this companyrt had e
x-
pired. we must accordingly overrule the views expressed
in
chandra mohinis air 1967 sc 581 and lila gupta cases  i
lr
1969 1  all 92 . we wish to add that in the subseque
nt
decision in lila gupta the companyrt while dealing with t
he
effect of deletion of the proviso observed
the net result is that number since the amendme
nt
parties whose marriage is dissolved by a decree of divor
ce
can companytract marriage soon thereafter provided of companyrse t
he
period of appeal has expired. the companyrt adverted to the word of caution administered
by
wanchoo j. in chandra mohinis case and reiterated
even though it may number have been unlawful for t
he
husband to have marriage immediately after the high companyrt
decree for numberappeal as of right lies from the decree of t
he
high companyrt to this companyrt still it was for the respondent
to
make sure whether an application for special leave had be
en
filed in this companyrt and he companyld number by marrying immediat
e-
ly after the high companyrts decree deprive the wife of t
he
chance of presenting a special leave petition to this companyr
t.
if a person does so he takes a risk and companyld number ask t
he
court to revoke the special leave on that ground
it is numberdoubt true that in these two decisions this company
rt
was companysidering the impact of an appeal against a decr
ee
under section 13 itself and number a decree under section 11
or
12 but as indicated earlier if the impact of the phraseolo
gy
fight of appeal occurring in sec. 15 is to be examined
in
the light of language of sec. 28 as discussed earlier the
re
will be numberdifference in respect of the fight of appe
al
whether the decree is under sections 11 12 or 13.
the decisions of the high companyrt on which reliance
is
placed by companyrts below and the learned companynsel for t
he
respondent are i  mohanmurari ii  jam boo prasad jain a
nd
pramod sharrna. in numbere of these decisions the impact of t
he
fight of appeal occurring in sec. 15 in view of the langua
ge
of section 28 where the right of appeal is companyferred h
as
been companysidered. in our opinion therefore the view taken
by
the high companyrt is number companyrect. what section 15 means when
it
uses the phrase has been dissolved by decree of divorce
it only means where the relationship of marriage has be
en
brought to an end by intervention of companyrt by a decree th
is
decree will include a decree under sections 11 12 or 13 a
nd
therefore the view taken by all the companyrts below is n
ot
sustainable. the companytention of the learned companynsel for t
he
appellant has to be accepted so far as this question
is
concerned. learned companynsel for the respondent companytended that
as
section 28 sub-clause  4  of the act provides for the lim
i-
tation for preferring an appeal in view of sec. 29 clau
se
 3 . provisions of limitation act will number apply and if th
ey
do number apply as the trial companyrt disposed of the matter by
decree dated 3.5.1985 the period of limitation for appe
al
could only be upto 3.6.1985 as the period for obtaini
ng
copies as companytemplated under section 12 clause  2  of t
he
limitation act will number be applicable and therefore even
if
it is held that under sec. 15 the respondent had to wa
it
till the period of limitation for appeal expires
as he entered into a marriage on 27.6.1985 it was clear
ly
after the period of limitation has expired and therefo
re
this marriage apparently made the appeal filed by the appe
l-
lant infructuous. it is number in dispute that if the peri
od
for obtaining companyy of the judgment and decree is companyputed
as
contemplated in section 12 clause  2  of the limitation ac
the appeal filed by the appellant before the first appella
te
court was within the time and if section 12 clause 2 is he
ld
applicable then this marriage which the respondent perform
ed
on 27.6.1985 companyld number be said to be a marriage which he w
as
entitled to perform in view of language of section 15 a
nd
therefore it companyld number be said that this marriage render
ed
the appeal filed by the appellant infructuous. learn
ed
counsel for the respondent mainly placed reliance on t
he
language of sec. 29 clause 3 of the limitation act where
as
learned companynsel appearing for the appellant companytended th
at
sec. 29 clause 3 talks of suit or proceedings and therefo
re
the phrase proceedings used in clause 3 of sec. 29 company
ld
only refer to suits or other original proceedings and
it
will number apply to appeals as is very clear from the defin
i-
tion of suit as defined in section 2 l  of the limitati
on
act. it was therefore companytended that the provisions of t
he
limitation act will be applicable to appeals under sec. of the act. learned companynsel for the appellant placed rel
i-
ance on the decisions in chander dev chadha v. smt. ra
ni
bala air 1979 delhi 22 smt. sipra dey v. ajit kumar de
air 1988 calcutta 28 and kanti-bai v. karnal singh thaku
air 1978 m.p. 245.
section 2 l  of the limitation act defines the suit. it
reads
suit does number include an appeal or an application. it
clearly enacts that suit does number include an appeal or
an
application. sec. 29 of the limitation act reads

savings  1  numberhing in this act shall affect section
of the indian companytract act 1872.

where any special or local law prescribes for any sui
appeal or application a period of limitation different fr
om
the period prescribed by the schedule the provisions
of
section 3 shall apply as if such period were the peri
od
prescribed by the schedule and for the purpose of determi
n-
ing any period of limitation prescribed for any suit appe
al
or application by any special or local law the provisio
ns
contained in sections 4 to 24  inclusive  shall apply on
ly
insofar as and to the extent to which they are number
expressly excluded by such special or local law. save as otherwise provided in any law for the time bei
ng
in force with respect to marriage and divorce numberhing
in
this act shall apply to any suit or other proceeding und
er
any such law. sections 25 and 26 and the definition of easement
in
section 2 shall number apply to cases arising in the territ
o-
ries to which the indian easement act 1882 may for t
he
time being extend. clause  2  of this section provides that where the limit
a-
tion provided by the special or local law is different fr
om
the period prescribed by the schedule the provisions
of
section 3 will apply. in the hindu marriage act the peri
od
of appeal is prescribed. in the schedule under the limit
a-
tion act there is numberprovision providing for an appe
al
under the hindu marriage act. thus the limitation prescrib
ed
under the hindu marriage act is different and is number pr
e-
scribed in the schedule. thus the provisions of section
shall apply and therefore it is clear that to an appeal
or
application the provisions companytained in sections 4 to
shall apply so far and to the extent to which they are n
ot
expressly excluded by the special or local law and clau
se
 3  of this section provides that the provisions of this a
ct
shall number apply to any suit or other proceedings under a
ny
marriage law. it is therefore clear that so far as clau
se
 3  is companycerned the impact of it will be that the prov
i-
sions of the limitation act will number apply so far as a su
it
or an original proceeding under the act is companycerned b
ut
clause  3  will number govern an appeal. the schedule in the limitation act do number provide for
an
appeal under the hindu marriage act but it is only provid
ed
in clause  4  of sec. 28 of the hindu marriage act. thus t
he
limitation provided in clause  4  of sec. 28 is differe
nt
from the schedule of the limitation act. accordingly
to
clause  2  of sec. 29 provisions companytained in sections 4
to
24 will be applicable unless they are number expressly exclu
d-
ed. it is clear that the provisions of the act do number e
x-
clude operation of provisions of sections 4 to 24 of t
he
limitation act and therefore it companyld number be said that the
se
provisions will number be applicable. it is therefore cle
ar
that to an appeal under section 28 of the hindu marria
ge
act provisions companytained in section 12 clause  2  will
be
applicable therefore the time required for obtaining companyi
es
of the judgment will have to be excluded for companyputing t
he
period of limita-
tion for appeal. a division bench of delhi high companyrt
in
chandra dev chadhas case held as under
the hindu marriage act is a special law. that this speci
al
law prescribes for an appeal a period of limitation
is
also evident. the period of limitation is 30 days. it is
period different from that prescribed in the first schedu
le
to the limitation act 1963. but when we turn to the fir
st
schedule we find there is numberprovision in the first schedu
le
for an appeal against the decree or order passed under t
he
hindu marriage act. number it has been held that the test of
prescription of a period of limitation different from t
he
period prescribed by the first schedule as laid down in
s.
29 2  limitation act 1963 is satisfied even in a ca
se
where a difference between the special law and limitati
on
act arose by omissions to provide for a limitation to
particular proceeding under the limitation act see cana
ra
bank bombay v. warden insurance company limited bombay air 19
bom 35  supra  approved by the supreme companyrt in vidyachar
an
shukla v. khubchand air 1964 sc 1099  1102 . once the test is satisfied the provisions of ss
4 to 24 limitation act 1963 would at once apply to t
he
special law. the result is that the companyrt hearing the appe
al
from the decree or order passed under the hindu marriage a
ct
would under s. 3 of the limitation act have power to dismi
ss
the appeal if made after the period of limitation of 30 da
ys
prescribed thereof by the special law. similarly under s.
for sufficient cause it will have the power to companydo
ne
delay. likewise under s. 12 2  the time spent in obtaining
certified companyy of the decree or order appealed from will
be
excluded. if it is so s. 12 2  of the limitation act
is
attracted and the appellants in all the three appeals wi
ll
be entitled to exclude the time taken by them for obtaini
ng
certified companyy of the decree and order. the appeals ar
therefore within time. similar is the view taken by the calcutta high companyrt in sm
t.
sipra deys case and also the m.p. high companyrt in kantibai
case. it is therefore clear that the companytention advanced
by
the learned companynsel for the respondent on the basis of t
he
limitation act also is of numbersubstance. companysequently the appeal is allowed. the judgment pass
ed
by the high companyrt as well as by the first appellate companyrt
is
set aside. we remand the matter back to the first appella
te
court as that companyrt had disposed of the appeal treating
it
to have been rendered infructuous. we therefore direct th
at
the learned lind additional district judge nagpur befo
re
whom the appeal was filed will hear the appeal on meri
ts
and dispose it of in accordance with law. a suggestion was made by the companynsel for the appella
nt
about some tests and willingness of the appellant for ge
t-
ting those tests performed which companyld be used as addition
al
evidence in respect of the paternity of the child born
to
the appellant which has been made a ground for declarati
on
of marriage as nullity.


civil appellate jurisdiction civil appeal number 2415 of
1968.
appeal by special leave from the judgment and decree dated
10-7-68 of the madhya pradesh high companyrt in second appeal
number 3773 of 1962.

k. sanghi a. g. ratnaparkhi and g. l. sanghi for the
appellant. r. lalit y. n. ganpule and yeena devi  mrs.  khanna for
the respondent number 1.
the judgment of the companyrt was delivered by
sarkaria j.-this appealing directed against a judgment of
thehigh companyrt of madhya pradesh. the following is the genealogy of the parties
dewaji
-----------------------------------------------------------
jiwaji dhondya ghusya
 wife jhuli
shioba shyam -----------------
punjya turji
 last male  wd o janaji
holder
sonu bhajya
 deft. number 2   deft number 1  smt. sarji
gopikabai
 wife of mukundrao
pltff.-respdt. 1
smt. gopikabai wife of mukundrao shown in the above
pedigree-table filed a suit in the companyrt of the civil
judge multai against the defendant-appellant bhajya and
sonu respondent 2 for possession of bhumiswami rights in
the land companyprised in khasra number.31 and 166 in the area of
village kuthkhedi tehsil multai district betul madhya
pradesh. the suit land originally belonged to ghusya son of dewaji. ghusya died before the settlement of 1918 and thereafter
this land was held by his son punjya who died in the year
1936. on punjyas death the holding devolved on punjyas
widow smt. sarji smt. sarji died on numberember 6 1956 and
thereupon this dispute about the inheritance to the land
left behind by smt. sarji has arisen between the
parties. both the parties claim on the basis of hindu law. the plaintiff-respondent smt. gopikabai claims that she
being the daughter of smt. turji a sister of the last male
holder punjya is an heir under section 15 read with
section 2  ii   4   iv  of the schedule referred to in
section 8 of the hindu succession act 1956 whereas the
defendants claim as sapindas of the last male holder under
mitakshra law. it is alleged by the plaintiff that bhajya and sonu
defendants took forcible possession of the suit land after
the death of smt. sarji. apart from possession the plaintiff claimed rs. 180/- as
damages for the crop removed by the defendants. the defendants case as laid in the written statement was
that the suit property being an agricultural holding  in
view of section 4 2  of the hindu succession act the
inheritance to the estate of smt. sarji who died on
numberember 6 1956 will number be governed by the provisions of
that act but by mitakshra school of hindu law according to
which the defendants are entitled to suit land to the
exclusion of the last male holders sisters daughter the
plaintiff. the trial companyrt decreed smt. gopikabais claim. on appeal
the additional district judge set aside the decree of the
trial companyrt and dismissed the respondents suit. in second appeal by the plaintiff the high companyrt following
its earlier decision in kumari ramlali v. mst. bhagunti
bai 1  held that bhumiswami and bhumidhari rights are number
tenancy rights and section 151 of the madhya pradesh land
revenue companye 1954 which deals with the devolution of
interest of a bhumiswami or a bhumidhari tenure-holder
cannumber be regarded as a provision dealing with the
devolution of tenancy rights. section 4 2  of the hindu
succession act 1956 in numberway saves section 151 of the
madhya pradesh land revenue companye and it cannumber be held that
section 14 of the hindu succession act does number affect the
personal law according to which the devolution of the
interest of a tenure-holder passes under section 151 of the
code. the high companyrt further held that the expression
heirs of the husband in section 15 1   b  as also in
section 15  2   b  refers to the heirs of the deceased
husband who would have succeeded under the provisions of
the hindu succession act 1956 if the husband had died on
the date on which the female intestate actually died. on
these premises the high companyrt held that the plaintiff smt. gopikabai falls within clause  b  of section 8 and as
such is entitled to succeed in preference to the defendant-
agnates companying under clause  c  of that section. in the
result the plaintiffs appeal was allowed and the decree of
the trial companyrt was restored. hence this appeal by special leave. the companytentions canvassed before us by mr. sanghi learned
counsel for the appellants are as under

section 151 of the madhya pradesh land revenue companye
1954  in short the companye  was a law for the devolution of
tenancy rights in agricultural holdings because under the
scheme of the companye bbumiswamis and bhumidaris were tenure-
holders who companyld be included in the term tenants. nahar
hari singh v. dukallun 2  and sitabai v. kothulal 2  were
cited. in view of the position stated at number  i  section 4 2
of the hindu succession act 1956  for short called the
act  saved

l.p.a. 6 of 1965 decided on april 201968.

a.i.r. 1974 m.p. 141  f.b. . a.i.r. 1959 bom. 78.
section 151 of the companye. therefore devolution of the
agricultural holding left behind by the deceased tenure-
holder 9 will be governed by section 151 of the companye and number
by anything provided in the act. the expression personal law in section 151 of the
code means the hindu law which was in force before the
enactment of the act when the companye was enacted on february
5 1955 because the words any law for the time being in
force in sub-section  2  of section 4 of the act cannumber be
construed to mean any law which came into force
subsequently. in view of number  iii  under mitakshra law  sans the
act  the respondent being the daughter of the sister of the
last male-holder will be excluded from succession by the
appellants who are agnates of the husband of smt. sarji
deceased. even if the act applies the expression heirs of the
husband in section 15 means heirs in accordance with the
general hindu law in force when the husband died and number
the heirs ascertained under section 8 by fictionally
postponing punjyas death of 6th numberember 1956 when smt. sarji died  kampiqh v. girigamme 1  relied upon . as against this mr. lalit submits that-

section 151 of the companye is number a law dealing with
devolution of tenancy rights in agricultural holdings and
as suchis number companyered by the saving clause in section 4 2
of the act. section 151 is companyfined to the devolution of
the interest of a tenure-holder the companycept of which
under the scheme of the companye is different and distinct from
a tenant. chapter xi of the companye deals with tenants
while chapter xii  in which section 151 is placed  deals
with tenure-hold-.--

even if a tenure-holder includes a tenant then
also section 151 of the companye by reference makes the
devolution of the interest of a deceased tenure holder
subject to his personal law as on his death. since smt. sarji died on numberember. 6 1956 the personal law which
will govern the inheritance to her estate is hindu law as
modified by the hindu succession act 1956 under section 15
read with section 8 of the act respondent number1 being a
preferential heir will exclude the appellants from
inheritance to the estate of smt. sarji. before dealing with these companytentions it will be profitable
to have a look at the relevant provisions of the madhya
pradesh land revenue companye 1954.
a section 2  7  of the companye defined a holding to mean
inter alia a parcel of land separately assessed to land
revenue. section 2 20  defined a tenure-holderasa
person holding land from the state government as a
bhumiswami or a bhumidhari. section 2 19  defined a
tenant as a person holding land from a tenure-holder as
an ordinary or an occupancy tenant under chapter xiv. chapter xii dealt with tenure-holders. in that chapter
section 145 provided that there shall be two classes of
tenure-holders of

a.i.r. 1966 mysore 189.
lands held from the state namely  i  bhumiswami and  ii
bhumidhari. sections 146 and 147 indicated the persons who companyld be descr
ibed as bhumiswamis and bhumidharis. section
148 provided that every person becoming a bhumiswami or
bhumidhari shall pay as land revenue-
 a  if he was paying land revenue in respect
of the lands held by him-such land revenue
 b  if he was paying rent in respect of the
land held by him-an amount equal to such rent. it may be numbered that chapter xii of the companye further
contains provisions for transfer of bhumiswami or bhumidhari
rights and partition of bhumiswami and bhumidhari holdings
when there are more than one tenure holder. tenancy rights
are number dealt with in this chapter but separately in
chapter xiv sections 168 and 172 in chapter xiv deal with
the devolution of rights of an ordinary tenant and an
occupancy tenant. those rights also pass on the death of a
tenant in accordance with the personal law of the deceased. section 151 which is in chapter xii runs
thus
subject to his personal law the interest of
a tenure holder shall on his death pass by
inheritance survivorship or bequest as the
case may be. from the above companyspectus the following
points emerge clear

a tenure-holder and a tenant have been separately and
distinctly defined in clauses  20  and  19  of section 2 of
the 1954 companye. a tenant according to the definition
holds land from a tenure-holder but a tenure-holder holds
land directly from the state. a bhumiswami bhumidhari pays land revenue to the state
and number rent. tenancy rights and rights of bhumiswami bhumidhari are
dealt with in separate chapters of the companye. bhumiswamis bhumidharies have permanent heritable and
transferable rights in the land which cannumber be taken away
except in certain cases. there is a companyflict of judicial opinion as to whether
chapter xii in general and section 151 in particular is a
law for the devolution of tenancy rights in respect of
agricultural holdings within the saving clause in section
4 2  of the hindu succession act 1956.
a division bench of the bombay high companyrt  at nagpur  in
smt. indubai v. vyankati vithoba sawadha ors.  1  held
that the aforesaid provisions in the 1954 companye ate number such
a law and the exception made in section 4 2  of the act
cannumber apply to them. in view of the distinctive features of the rights of a
tenure-holder a division bench of the madhya pradesh high
court also in kumari ramlali v. mst. bhagunti bai
ors.  2  took the same view and held that section 151 of
the companye which deals with devolution of

a.i.r. 1966 bom. 64.

a.i.r. 1968 m. p. 247.
the interest of a bhumiswami or bhumidhari tenure-holder is
number a provision dealing with devolution of tenancy rights
within the companytemplation of section 4 2  of the act. a full bench of the madhya pradesh high companyrt in nahar
hirasingh ors. v. mst. dukalhin ors.  1  by a majority
of two against one however over-ruled on this point the
decision in kumari ramlali v. mst. bhagunti  ibid  and
dissented from the bombay view. but the full bench was number
concerned with the interpretation of section 151 of the 1954
code. the provision the interpretation of which was in
question before the full as section 164 of the madhya
pradesh land revenue companye 1959 as it stood before its
amendment in 1961. whereas section 151 of the 1954 companye in
terms provided that personal law would be applicable in the
matter of do devolution of the interest of a tenure holder
 i.e. bhumiswami and bhumidhari  section 164 of the companye
of 1959  which had repealed and replaced the companye of 1954
as it stood at the material time companymenced number only with a
number-obstante clause militating against the application of
personal law but also provided its own list of heirs and
order of succession which was different from that laid down
in the hindu succession act 1956.
be that as it may for the purpose of deciding the case
before us it is number necessary to pronumbernce one way or the
other on the question whether section 151 of the 1954 companye
is a law for devolution of tenancy rights in agricultural
holdings because even on the assumption that it is such a
law section 151 of the 1954 companye itself in terms makes
personal law applicable in the matter of. the devolution of
the interest of a deceased tenure holder. well then does
the expression personal law mentioned in section 151 in
the case of hindus means is companytended by mr. sanghi-hindu
law as obtaining on february 5 1955 when the 1954 companye came
into force? or does it mean hindu law as amended by the
hindu succession act prevailing on numberember 6 1956 when
smt. sarji died ? it is well knumbern that a legislature can legislate on a
subject by referential incorporation if that subject is
constitutionally within its legislative companypetence. section
151 is an instance of legislation by such method. the state
legislature enacted the 1954 companye in exercise of its power
under entry 5 in the companycurrent list  i.e. list iii  which
reads as under

marriage and divorce infants and minumbers
adoption wills intestacy and succession
joint family and partition all matters in
respect of which parties in judicial
proceedings were immediately before the company
mmencement of ibis companystitution subject to
their personal law. the 1954 companye had also received the assent of the president
under article 254 2  of the companystitution. the questions posed above turn on an interpretation of the
language of won 151. mere are numberwords in that section or
elsewhere

a.i.r. 1974 m.p. 141
on the companye which limit the scope of the expression
personal law to that prevailing on february 5 1955. on
the companytrary the words on his death used in section 151
clearly show that the legislative intent was that personal
law as amended upto the date on which the revolution of the
tenure holders interest is to be determined shall be the
rule of decision. broadly speaking legislation by referential incorporation
falls in two categories first where a statute by specific
reference incorporates the provisions of anumberher statute as
of the time of adoption. second where a statute
incorporates by general reference the law companycerning a
particular subject as a genus. in the case of the former
the subsequent amendments made in the referred statute can
number automatically be read into the adopting statute. in the
case of latter category it may be presumed that the
legislative intent was to include all the subsequent
amendments also made from time to time in the generic law
on the subject adopted by general reference.this principle
of companystruction of a referred statute has been neatly summed
up by sutherland thus
a statute which refers to the law of a
subject generally adopts the law on the
subject as of the time the law is invoked. this will include all the amendments
and modifications of the law subsequent to the
time the reference statute was enacted.  vide sutherlands statutory companystruction
third edition article 5208 page 5208 . companypus juris secundum also enunciates the same principle in
these terms
where the reference in an adopting
statute is to the law generally which governs
the particular subject and number to any
specific statute or part thereof . . . the
reference will be held to include the law as. it stands at the time it is sought to be
applied with all the changes made from time
to time at least as far as the changes are
consistent with the purpose of the adopting
statute. companystructed in accordance with the above principle the
expression law referred to in section 151 of the companye
comprehends the hindu succession act 1956 which will
undoubtedly govern the inheritance to the estate of smt. sarji who died on numberember 6 1956 much after the companying
into force of that act. if we can say so with due
deference the view taken on this point by the bombay high
court in smt. indubais case  ibid  and by the madhya
pradesh high companyrt in kumari ramalis case  supra  and by
tare c.j. in nahar hirasinghs case  ibid  is companyrect. the further question to be companysidered is which of the
parties is entitled to succeed to the interest of smt. sarji deceased under the hindu succession act 1956 ? the general rules of succession in the case of a female
hindu dying intestate are given in section 15 of the act
which so far as it is material for the purpose reads as
follows -
15  1  the property of a female hindu dying intestate shall
devolve according to the rules set out in section 16-
 a  upon the sons and daughters  including the children of
any predeceased son or daughter  and the husband
 b  upon the heirs of the husband
 c  to  e

numberwithstanding anything companytained in sub-section
 1 -
 a
 b  any property inherited by a female hindu from her
husband or from her father-in-law shall devolve in the
absence of any son or daughter of the deceased  including
the children of any predeceased son or daughter  number upon
the other heirs referred to in sub-section  1  in the order
specified therein but upon the heirs of the husband. this section should be read along with the rules set out in
section 16 the material part of which runs as under
the order of succession among the heirs
referred to in section 15 shall be and the
distribution of the intestates property among
those heirs shall take place according to the
following rules namely -
rule 1
rule 2
rule 3.-the devolution of the property of the
intestate on the heirs referred to in clauses
 b   d  and  e  of sub-section  1  and in
sub-section  2  of section 15 shall be in the
same order and according to the same rules as
would have applied if the property had been
the fathers or the husbands as the case may
be and such person had died intestate in
respect thereof immediately after the
intestates death.  emphasis supplied
the instant case will fall under clause  b  sub-section  2
of section 15 because smt. sarji died issueless and
intestate. the interest in the suit property was inherited
by her from her husband. the suit land will therefore
under clause  b  go to the heirs of her husband punjya. 2-315sci/78
the next question is whether the heirs of the husband in
section 15 are to be with reference to the date of
punjyas demise in 1936 or with reference to the date of
shrimati sarjis death on numberember 6 1956 when succession
opened out. there appears to be some divergence of opinion among the
high companyrts on this point. we are however of opinion that
once it is found that the case falls under section 15  2
 b  the fiction envisaged in rule 3 of section 16 is
attracted according to which for the purpose of
ascertaining the order of devolution it is to be deemed as
if the husband had died intestate immediately after the
female intestates death. bearing this fiction in mind we
have then to go to the schedule under section 8 of the act
to find out as to who would be the heirs of smt. sarjis
husband on the date of her death. section 8 of the act
provides that the property of a male hindu dying intestate
shall devolve according to the provisions of this chapter -

firstly upon the heirs being the
relatives specified in class 1 of the
schedule

secondly if there is numberheir of class 1
then upon the heirs being the relatives
specified in class ii of the schedule

thirdly if there is numberheir of any of the
two classes then upon the agnates of the
deceased and
lastly if there is numberagnate then upon the
cognates of the deceased. number smt. gopikabai respondent 1 is admittedly the
daughter of the sister of the last male holder punjya
whereas the appellants are his remote agnates. neither
party falls under class i of the schedule. sisters
daughter is item 4 of entry iv in class ii of the schedule
while agnates do number figure anywhere in class ii. thus
smt. gopikabais case will companye in clause  b  secondly
of section 8 and as such she will be a preferential heir
of the husband of smt.


civil appellate jurisdiction civil appeal number 2021 of
1969.
appeal by special leave from the judgment and order
dated 15th january 1969 of the punjab and haryana high
court in s.a. number 905 of 1963.

k. garg for the appellants. hardev singh for respondent number 1.

s. bindra and t. s. arora for respondent number 2.
the judgment of the companyrt was delivered by
untwalja j.-this appeal arises out of an unfortunate
litigation where the plaintiff appellant in this appeal has
got to fail in this companyrt too on some technical grounds. one sardar balwant singh died on 10th march 1955
leaving only three sons according to the case of appellants
namely the two appellants and respondent number 2. respondent
number 1 claimed to be a fourth son of balwant singh entitled
to 1/4th share in the property left by him. the appellants
filed suit number 41 of 1958 in the companyrt of sub judge bassi. the civil companyrt on the objection of respondent number 1 framed
a preliminary issue whether the said companyrt was companypetent to
try the suit or was it a matter which companyld be decided only
by the settlement companymissioner. by order dated 7.7.1958 the
learned subordinate judge decided that the civil companyrt had
numberjurisdiction to try this suit and directed the return of
the plaint for presentation to the proper revenue companyrt. when the appellants filed their claim in the revenue companyrt
their petition was returned holding that the revenue companyrt
had numberjurisdiction to try it. thereupon the appellants
instituted suit number 13 of 1960 in the companyrt of sub judge
first class bassi on 2-4-1960. this suit has failed
throughout on the ground of res judicata. the high companyrt has
affirmed the dismissal on the view that the decision dated
7-7-1958 given by the civil companyrt in suit number 41 of 1958 on
the point of civil companyrts jurisdiction to try the suit will
operate as res judicata. in our opinion the high companyrt is
right. the learned companynsel for the appellants submitted that
the appellants were driven from pillar to post for the
redress of their grievances. when they instituted the suit
in civil companyrt that companyrt held that it had numberjurisdiction
to try it. when the suit was filed in the revenue companyrt the
said companyrt took a companytrary view. where companyld the appellants
then go? we do sympathise with the appellants dilemma but
they were wrongly advised to do as they did. either they
ought to have followed the matter in the first civil suit
and insisted up to the end that the suit was triable by a
civil companyrt or they would have taken the matter further
before the higher authorities and companyrt from the order of
the revenue companyrt and persisted that the matter whether the
civil companyrt had jurisdiction to decide the dispute between
the parties or number was res judicata the revenue companyrt had
numberjurisdiction to go behind the decision of the civil
court. the appellants did
neither. it is unfortunate that due to the wrong paths which
they followed under wrong advice they have ultimately to
fail on the technical ground of res judicata but there is no
way out. it was pointed out by lord russell of killowen upendra
nath bose v. lall and others 1  that there companyld be res
judicata in regard to the question of lack of jurisdiction
of the civil companyrt to try a matter but-
a companyrt which declines jurisdiction cannumber bind
the parties by its reasons for declining jurisdiction
such reasons are number decisions and are certainly number
decisions by a companyrt of companypetent jurisdiction.  vide
page 225 . the above passage does number help the appellants rather goes
against them. mr. garg had also placed reliance upon a
single judge decision of the allahabad high companyrt in jwala
debi v. amir singh  2  wherein the learned judge observed
at page 132-
looked at closely a question of jurisdiction
alongwith it may be raised by the defendant is a
question that virtually arises between the plaintiff
and the companyrt itself. the plaintiff invokes the
jurisdiction of the companyrt. the defendant may or may number
appear. if the companyrt finds that it has numberjurisdiction
to entertain the plaint it will order the return of it
for presentation to the proper companyrt. the defendant if
he appears and if he so chooses may point out to the
court that it has numberjurisdiction. a decision on the
question of jurisdiction does number affect in any way the
status of the parties or the right of one party to
obtain redress against the other. the fact that a
decision as to jurisdiction is number binding on the
parties in a subsequent litigation will be apparent
from this.


civil appellate jurisdiction civil appeal number 1111 of
1992.
from the judgment and order dated 19.11.91 of the
bombay high companyrt in w.p. number 3398 of 1991.
soli j. sorabjee and a.m. khanwilkar for the
appellants. r. lalit v.n. ganpule and k. madhava reddy v.b. joshi s.m. jadhav and a.s bhasme for the respondents. k. dholakia r.b. masodkar and k.l. taneja for the
intervenumbers. the judgment of the companyrt was delivered by
kasliwal j. special leave granted. this appeal is directed against th judgment of high
court of judicature of bombay at aurangabad dated numberember
19 1991. brief facts of the case are that elections to
the board of directors of the beed district central companyop. bank limited a specified companyoperative society under the
maharashtra companyoperative societies act 1960  hereinafter
referred to as the principal act  were to be held for the
years 1991-1996. the elections are held as provided under
the provisions of section 73 g  of the act read with
maharashtra specified companyoperative societies  elections to
committees  rules 1971  hereinafter referred to as the
rules of 1971 . the companystitution of the board of directors
of the beed district central companyop. bank limited  hereinafter
referred to as the beed companyop. bank. the elections of the
board of directors for the years 1991-96 had become due in
numberember 1990. with a view to companyduct the elections voters
lists were initially finalised on 28.2.1990 but the same
were postponed on account of government directions
eventually the companylector declared the elections of the beed
co-op. bank under rule 16 of the rules of 1971 on 8.10.1991.
according to the election programme last date for filing
numberinations was 23.10.1991 last date for scrutiny on
25.10.1991 last date for withdrawal 11.11.91 and the date
of polling was fixed on 27.11.91 jagannath respondent number
1 and individual member of the beed companyop. bank and
ramkirshana maroti being member of agriculture service company
operative society bhayala and delegate of the said society
in the beed companyop. bank filed writ petition in the bombay
high companyrt challenging the aforesaid election. the high
court took the view that the election process had been
started in derogation and violation of section 73 2  of the
act and as such
the same was declared is illegal and invalid . it was
directed that it will be open to the authorities to start a
new election programme adhering to the mandatory requirement
of section 73 2  of the act taking every step in a proper
and careful manner. the beed companyop. bank and its chairman
have companye in appeal before this companyrt challenging the order
of the high companyrt. in order to appreciate the companytroversy we find it
necessary to mention the background of the litigation as
well as the various changes brought from time to time in the
relevant provisions of law. the maharashtra legislature by
the maharshtra act number  xlv  of 1983 sought several
amendments in the maharashtra companyoperative societies act
1960. the relevant amendment for our purpose is the
following proviso added to sub-sec.  3  of sec. 27 of the
act
provided that numberwithstanding anything companytained
in this act or in the rules made thereunder or in
any bye-laws of any society where such other
society is a federal society belonging to any of
the categories specified in section 73-g then all
the members elected to  and the members if any
co-opted or appointed under section 73-b on the
committee of such first society shall have the
right to vote on its behalf in the affairs of such
other society
provided further that where the election is to a
reserved seat under section 73-b numberperson shall have more
than one vote. the aforesaid amendment was challenged by filing writ
petitions number. 2170 and 2054 of 1984 and the high companyrt by
its order dated 8.1.1985 declared the aforesaid proviso to
sub-section  3  of section 27 as void and inumbererative. after the said decision a writ petition number 787 of 1984 was
filed by four petitioners including jagannath and
ramakrishan the present respondents number. 1 and 2 and the
high companyrt following its earlier decision dated 8.1.1985
rendered in writ petition number. 2170 and 2054 of 1984 by an
order dated 15.1.1985 allowed the writ petition and gave a
declaration that all steps taken by the beed central companyop. bank limited for holding elections of the bank and all the
steps taken on the basis of proviso to sub-s. 3  of section
27 were null and void. the parties aggrieved against the
aforesaid decision filed special leave petition before this
court. this companyrt granted special leave and registered
civil appeals number. 1907 and 1908 of 1989. before the
aforesaid appeals came up for final hearing by
this companyrt the maharashtra legislature brought the
maharashtra act number  xx  of 1986 an act further to amend the
maharashtra companyoperative societies act 1960. by this
amendment act section 73 of the principal act was
renumbered as sub-s. 1  thereof and after sub-s. 1  as so
renumbered the following sub-s. 2  inserted

numberwithstanding anything companytained in any
bye-laws of a society or class of societies the
registrar may having regard to the area of
operation subscribed share capital or turnumberer of
a society or class of societies by general or
special order published in official gazette
prescribe the maximum number of members on the
committee of such society or class of societies
as may be specified in such order. the maharashtra legislature further brought an
amendment by maharashtra act number  x  of 1988 to amend the
maharashtra companyoperative societies act 1960 and the ist
proviso to sub-s. 3  of section 27 was deleted. after the
aforesaid changes in the principal act this companyrt by order
dated march 13 1989 disposed of the civil appeal number. 1907
and 1908 of 1989. this companyrt passed the following order-
it is brought to our numberice by the learned
counsel for both the parties that subsequent to
the judgment of the high companyrt section 73 of the
maharashtra companyoperative societies act has been
amended by addition of sub-section  2  of section
73 of the act in 1986. in view of the above
amendment it is submitted by learned companynsel for
both the parties that the elections to the company
operative societies in question have to be held in
accordance with the amended law. we accordingly
make an order in substitution of the order of the
high companyrt that elections to the companyoperative
societies may be held in accordance with the
amended law as early as possible. the appeals are
disposed of accordingly. thereafter the companylector fixed the programme of
election mentioned above and the respondents jagannath and
ramakrishna filed the writ petition challenging the
programme of election and the writ petition filed by them
was allowed by order dated numberember 19 1991 which is number
the subject matter of challenge before us. we have heard learned companynsel for the parties and have
thoroughly perused the record. the short companytroversy raised
before us is regarding sub-s.  2  of section 73 of the act
inserted in the act by maharashtra amendment act  xx  of
1986 to be mandatory or directory. the high companyrt has
taken the view that the above provision is mandatory and it
was incumbent on the registrar of the companyoperative societies
to prescribe the maximum number of members of the companymittee
of the beed companyoperative bank by issuing a specific order
and to publish such order in the official gazette. the high
court further held that in the absence of such order in
respect of the beed companyoperative bank followed by
publication in the official gazette the election process
fixed by the companylector was liable to be declared illegal and
invalid. the high companyrt also took the view that this companyrt
also in its order dated 15.3.1989 had clearly given a
direction to companyply with the provisions of sub-s.  2  of
section 73 and as such the programme of election fixed by
the companylector was in violation of the order of this companyrt
also. shri soli j sorabji learned senior companynsel appearing
on behalf of the appellants submitted that sub-s.  2  of
section 73 was inserted only with a view to curtail the
unequal voting rights companyferred on the members of the
society circumstanced on account of insertion of proviso to
sub-s.  3  of section 27 of the act. it was companytended that
admittedly the aforesaid porviso to sub-s.  3  of section 27
was deleted on 22.4.1988 by maharashtra act numberx of 1988.
with the deletion of the above proviso sub-s.  2  of sec. 73
became redundant. it was companytended that the insertion of
sub-s.  2  of section 73 was necessitated for validating the
proviso to sub-s.  3  of section 27 as both these provisions
were companyplimentary to each other. it was companytended that
prior to the insertion of sub-s.  2  of section 73 the
constitution of the companymittee of the beed companyoperative bank
was dependent on its own bye laws which were dully approved
by the registrar of the companyoperative societies. the bye law
number 28 of the beed companyoperative bank already prescribed the
maximum number of members in the companymittee to 21 members and
as such there was numberquestion of passing any order under
sub-s.  2  of section 73. it was submitted that the word
may in sub-s.  2  of section 73 clearly meant that the
said provision was an enabling provision and number mandatory
as held by the high companyrt. the said sub-section does number
cast any duty on the registrar to exercise the power of
prescribing maximum number in every case but only companyfers
upon him the discretion to make such an order if the
circumstances enumerated in the
said provision necessitated the exercise of such power. it
was also companytended that such power companyld alone be exercised
by the registrar where either the maximum number of members
on the companymittee fixed in the bye laws was required to be
changed in the opinion of the registrar or where the the bye
laws of a society may number have fixed the maximum number at
all. in that kind of case if any  order was passed by the
registrar then such order was required to be published in
the official gazette. it was also companytended that if this provision is held to
be mandatory it would result in invalidating the
constitution of numerous managing companymittees of the company
operative societies in the state of maharashtra and this
could never have been the intention of the legislature. on the other hand sh. u.r. lalit learned senior
counsel for the respondents number. 1 and 2 sh. dholakia
learned senior companynsel for one of the intervenumbers supported
the impugned judgment of the high companyrt. it was companytended
that unless the registrar applied his mind in the light of
the provisions companytained in sub-s. 2  of section 73 no
elections companyld have been declared by the companylector. it was
necessary for the registrar to apply his mind as to whether
the maximum number prescribed in the bye laws of a society
was justified or number and thereafter issue an order and to
publish the same in the official gazette. in the
alternative it was submitted that in the event of this
honble companyrt taking a different view from that of the high
court it was necessary to issue a fresh election programme
in view of the fact that all the companytesting candidates were
informed that the election programme fixed by the companylector
had been set aside by the high companyrt. it was also submitted
that the state of maharashtra has number issued a numberification
on 27th december 1991 postponing such elections upto 15th
april 1992.
it is worthwhile to numbere that the stand taken by the
state of maharashtra before us is that proviso to sub-s.  3
of section 27 was inserted in order to make the electorate
broad based and more representative in character where the
other society was federal society belonging to any of the
category mentioned in sub-s.  3  of section 27 of the act
it was proposed to provide that the right to vote on behalf
of the members of society should be companyferred on all the
elected members and companyopted members appointed on the
committee under section 73 instead of single representative
exercising such right of vote. the said provision was
declared invalid by the high companyrt of bombay by its
judgmentde dated 8.1.1985 and the said proviso was deleted
by act number  x  of 1988. as the said proviso has been
deleted the sub- s. 2  of section 73 has lost its relevance
number and it has remained only as an enabling provision
instead of a mandatory one. we shall have to companysider the question of sub-s.  2  of
section 73 being mandatory or directory in the background of
changes made from time to time in the principal act and the
effect of the directions given by this companyrt in its order
dated 13.3.1989. the beed district central companyoperative
bank is a specified companyoperative society having a federal
character. the elections to the board of directors have to
be held according to the provisions of the rules of 1971 in
conformity with the provisions of the act and the bye laws
made by it. the companystitution of the board of directors is
provided in bye law number28 which clearly states that the
management of business and affairs of the bank shall be
entrusted to a board of directors which shall hold office
for five years companysisting of number more than 21 members. thus
the bye-laws clearly specify that the maximum number of the
board of directors would be 21. the bye laws have been made
with the approval of the registrar companyoperative societies. proviso to sub-s. 3  of section 27 was inserted by act
number xlv  of 1983. section 27 dealt with voting powers of
members. after deletion of the proviso to sub-s.  3  of
section 27 by maharashtra act  xx  of 1988 sub-s.  3  of
section reads as under  p.103   annexure-d
s. 27 members and their rights and liabilities
voting powers of members 1 1  save as
otherwise provided in sub-sections  2  to  7
both inclusive numbermember of any society shall
have more than one vote in its affairs and every
right to vote shall be exercised personally and
number be proxy
provided that in the case of equality of
votes of the chairman shall have a casting vote

where a share of a society is held
jointly by more than one person 2 the person
whose names stands first in the share certificate
if present shall have the right to vote. but in
his absence the person whose name stands second
and in the
absence of both the person whose name
stands next and likewise in the absence of the
preceding persons the person whose name is next on
the share certificate who is present and who is
number minumber shall have the right to vote. a society which has invested any part of
its funds in the shares of anumberher society may
appoint one of its members to vote on its behalf
in the affairs of that other society and
accordingly such member shall have the right to
vote on behalf of first society
the main purpose of introducing proviso to sub-s. 3  of
section 27 was to widen and make the scope of voters as
broad based while electing members to the companymittee of a
federal society. it was laid down that all the members
elected as well as companyopted shall have the right to vote on
behalf of such society while electing the members to the
committee of a federal society. the provision was declared
invalid by the high companyrt and thereafter it was also deleted
by a legislative fiat by maharashtra act number x  of 1988.
the position as number stands is that in case of an election to
the members of the companymittee of a federal society any
member of such society shall number have more than one vote. the purpose of inserting sub-s.  2  of section 73 of the act
was that there was a necessity to companytrol the large number
if any of the elected and companyopted members getting a right
of vote allowed under the proviso to sub-s.  3  of section
27 of the act. however when the proviso to sub-s.  3  of
section 27 was struck down by the high companyrt and also
deleted by the legislature itself the purpose of
introducing sub-s. 2  in section 73 lost its thrust and
relevance and in our view even if it companytinued in the
statute it would be companysidered as directory and number
mandatory. it is numberdoubt that sub-s.  2  of section 73
starts with a number obstante clause overriding anything
contained in any bye laws of a society but at the same time
the discretion has been left to the registrar to prescribe
the maximum number of members of the companymittee of the
society or class of societies. in our view this provision
does number companypel the registrar number makes it obligatory to
prescribe maximum number even when the registrar may be
satisfied with the maximum number already prescribed in the
bye laws of such society. as already mentioned above the
state of maharashtra has also taken the stand in their
written submissions placed before us that after the deletion
of the proviso to sub-s.  3  of section 27 the provision of
sub-s.  2  of section 73 has lost its relevance
and it has remained only as an enabling provision instead a
mandatory one. thus we find force in the submissions made on behalf of
the beed companyoperative bank the appellant before us that the
provision of section 73 2  are directory and number mandatory. as regards the order dated 27th december 1991 issued
by the government postponing the elections upto 15th april
1992 and placed on the record of the case suffice to say
that the same would number apply to such companyoperative societies
in whose case the election process from the stage of making
numberinations has already companymenced on or before 26th
december 1991. in view of this the numberification dated
27th december 1991 cannumber apply in the case of the
appellant beed district central companyoperative bank as the
election process of filing numberinations was fixed for
23.10.91 and even the date of polling was 27.11.1991 i.e.


civil appellate jurisdiction civil appeals number. 51 and 52
of 1962. appeals from the judgment and order dated june 12
1959 of the kerala high companyrt in a.s. number. 538 and 539 of
1954.

a. seyid muhammad for the appellants-. t. desai and a. g.- pudissery for the respondent number 1
april 15 1964. the judgment of the companyrt was delivered by
gajendragadkar c. j.-these two appeals arise from two suits
number. 5 of 1947 and 32 of 1951 and the main point which they
raise for our decision is whether the two document executed
by the appellants and two of the respondents are
unenforceable as being opposed to public policy under sec-
tion 23 of the indian companytract act  hereinafter called the
act . the trial companyrt has answered this question in the
affirmative. while the high companyrt of kerala has taken a
contrary view. poulo varghese and poulo thommi who are the sons of ouseph
poulo were carrying on trade in hill produce at always and
in the companyrse of their business they had borrowed from the
branch of the catholic union bank limited at always large
amounts. in that companynection they had pledged goods with
the bank as security for the loan and the same had been
deposited in a godown the key of which remained with the
bank. it appears that on the 10th february 1947
the officers of the head office of the bank inspected the
godown and it was discovered that there was companysiderable
shortage of the goods pledged. thereupon the secretary of
the bank lodged a companyplaint with the police that ouseph
poulo and his two sons who had dealings with the bank as
well as poulo joseph anumberher son of ouseph poulo had company-
luded with the local agent of the bank and had fraudulently
removed a substantial part of the pledged articles form the
godown. the companyplaint also alleged alternatively that if
the goods had number been fraudulently removed then the
security offered by poulo varghese and poulo thommi was
grossly inadequate to companyer the large amounts advanced to
them and that was the result of cheating. the police
registered this case and investigations began. at that time
the parties settled their differences and the two documents
in question were executed. the criminal companyplaint was filed on the 13th february.and
the first information report was made on the 16th february
1947. on the 22nd february a hypothecation bond  ext. 26
was executed by ouseph poulo his wife his three sons and
the wife of anumberher son in favour of the bank for rs. 30000/-. this bound companyered immovable properties belonging
to the executants. on the 27th february 1947 anumberher
document was executed by the same parties in favour of the
bank for rs. 35000/- this document was called kollappirivu
karar  ext. b. . on the came day a receipt was executed by
poulo varghese and poulo thommi which showed that the goods
in the godown were valued at rs. 10000/- and were
surrendered to the bank in partial satisfaction of the debts
due from them to the bank. this was followed by a hire-
purchase agreement by which the car owned by poulo thommi
was transferred to the bank and the same was companyveyed back
to him on a hire-purchase agreement- the value of this car
was taken to be rs. 50001-. the total amount due from
poulo varghese and poulo thommi to the bank was rs. 80024-5-9. as a result of the transactions in which the
parties entered rs. 10000/- were made good by surrendering
to the bank the goods in the godown rs. 50001- by
transferring the car rs. 30000/- and rs. 35000/- by the
hypothecation deed and the karar respectively that left a
balance of rs. 24-5-9 which was paid in cash. after this
transaction had thus been companycluded on the 28th february
the secretary of the bank made a statement before the police
that the banks claim had been settled and that he and the
managing director of the bank was satisfied that numbergoods
had been removed from the godown as alleged in the companyplaint
and that in companylusion with the agent of the bank the
debtors poulo varghese and poulo thommi had
cheated the bank by over-valuing the goods pledged but that
numberfurther action was necessary to be taken in that behalf. in companysequence the criminal proceedings were dropped. that in substance is the nature of the transactions the
character of which falls to be determined in the present
appeals. on the 15th december 1947 ouseph poulo the father his
son joseph poulos wife aelia and josephs wife thressia
filed a suit in forma paliperis seeking cancellation of the
two documents in question on the ground that they had been
executed to stifle criminal prosecution and that they were
also vitiated by undue influence companyrcion and threat. the
first defendant to this suit was the bank and defendants 2
and 3 were the two debtors poulo varghese and poulo thommi
the sons of ouseph poulo. this was suit number 5/1947. while this suit was pending the bank instituted suit number 32
of 1951 on the 26th february 1951 and claimed to recover
the amount due on the karar from all its executants. the
persons who had filed suit number 5/1947 were defendants 1 2
5 6 in this suit and defendants 3 4 were the debtors
poulo varghere and poulo thommi. these two sets of defen-
dants filed two separate written statements. but the companymon
plea raised by them was that the document on which the
banks suit was based was unenforceable under s. 23 of the
act. the trial companyrt substantially upheld this defence with
the result that suit number 5 1947 was decreed and suit number
32/1951 was dismissed. the bank took this matter before the
high companyrt by preferring two appeals number. 538 539 of 1954.
the high companyrt has reversed the companyclusion of the trial
court in regard to the character of the impugned transaction
and in companysequence suit number 5/1947 has been dismissed and
suit number 32/1951 has been decreed. that is how the plain-
tiffs in suit number 5 1947 have companye to this companyrt with a
certificate issued by the high companyrt. during the companyrse of
this judgment. we will refer to the bank as the bank. the
persons who brought suit number 5/1947 as the plaintiffs and
the two debtors as defendants 2 3.
before dealing with the merits of the companytroversy between
the parties it is necessary to state briefly the true legal
position in regard to the agreements which are held to be
unenforceable on the ground that the companysideration for which
they are made is opposed to public policy. it is well-
settled that agreements which are made for stifling
prosecution are opposed to public policy and as such they
cannumber be enforced. the basis for this position is that the
consideration which sup ports such agreements is itself
opposed to public policy. in india. this doctrine is number
applicable to companypoundable offences number to offences which
are companypoundable with the leave of the
court where the agreement in respect of such offences is
entered into by the parties with the leave of the companyrt. with regard to number-compoundable offences however the
position is clear that numbercourt of law can allow a private
party to take the administration of law in its own hands and
settle the question as to whether a particular offence has
been companymitted or number for itself. it is obvious that if
such a companyrse is allowed to be adopted and agreements made
between the parties based solely on the companysideration of
stifling criminal prosecutions are sustained the basic
purpose of criminal law would be defeated such agreements
may enable the guilty persons to escape punishment and in
some others they may companyceivably impose an unconscionable
burden on an innumberent party under the companyrcive process of a
threat of the criminal prosecution. in substance where an
agreement of this kind is made it really means that the
complainant chooses to decide the fate of the companyplaint
which he has filed in a criminal companyrt and that is clearly
opposed to public policy. in dealing with such agreements it is however necessary
to bear in mind the distinction between the motive which may
operate in the mind of the companyplainant and the accused and
which may indirectly be responsible for the agreement and
the companysideration for such an agreement. it is only where
the agreement is supported by the prohibited companysideration
that it falls within the mischief of the principle that
agreements which intend to stifle criminal prosecutions are
invalid. the sequence of events numberdoubt has relevance in
dealing with this question but from mere sequence it would
number be safe to infer the existence of the prohibited
consideration. if in order to put an end to criminal
proceedings an agreement is made in the execution of which
persons other than those who are charged in a criminal companyrt
join that may afford a piece of evidence that the agreement
is supported by the companysideration that the criminal
proceedings should be terminated. if the nature of the
liability imposed upon a debtor by a previous dealing is
substantially altered with a view to terminate the criminal
proceedings that itself may be anumberher factor which the
court may take into account in deciding whether the agree-
ment is supported by the prohibited companysideration. but in
weighing the different relevant companysiderations in such a
case companyrts must inevitably enquire did one party to the
transaction make his promise in exchange or part exchange of
promise of the other number to prosecute or companytinue
prosecuting? as lord atkin observed in bhowanipur banking
corporation limited v. durgesh nandini desi 1  in all
criminal cases reparation where possible is the duty of the
offender and is to be encouraged. it would be a public
mischief if on reparation
 1   1942 i.l.r. i cal. 1.
being made or promised by the offender or his friends or
relatives mercy shown by the injured party should be used as
a pretext for avoiding the reparation promised. that
however is number to say that if reparation is made as a
consideration for a promise to give up criminal proceedings
it would number amount to an abuse of the right of private
prosecution and would number attract the provisions of s. 23 of
the act. the main point to remember is that the party
challenging the validity of the impugned transaction must
show that it was based upon an agreement to stifle
prosecution. if it is shown that there was an agreement
between the parties that a certain companysideration should
proceed from the accused person to the companyplainant in return
for the promise of the companyplainant to discontinue the
criminal proceedings that clearly is a transaction which is
opposed to public policy  vide v. narasimha raju v. v.
gurumurthy raju 1  maharaja srish chandra nandy v. supravat
chandra 2  sudhindra kumar ray chaudhuri v. ganesh chandra
ganguli 3  and kamini kumar basu v. birendra nath basu 4 . what then are the facts in this case on which the plaintiffs
seek to challenge the companyrectness of the companyclusion of the
high companyrt that the impugned transactions are number invalid? dr. seyid muhammed for the plaintiffs has urged that in
dealing with the present dispute between the parties it is
essential to remember that the companyplaint filed by the bank
against defendants 2 3 is found to be number a bonafide
complaint and that according to him shows the true
complexion of the impugned transactions. it is true that
the trial companyrt has found that the companyplaint made by the
bank was number bonafide and the high companyrt has number in terms
reversed that finding because the high companyrt disbelieved the
direct evidence led by the plaintiffs and held that the
agreement alleged by them was number proved. dr. seyid
muhammed therefore companytends that there is a finding
recorded by the trial companyrt which has number been reversed in
appeal and so we should deal with the main point in the
light of this finding. if we had been satisfied that the
complaint filed by the bank was deliberately and dishonestly
filed that numberdoubt would have assisted the plaintiffs to a
very large extent but after carefully companysidering the
material evidence on this point we are satisfied that the
trial companyrt was in error in companying to the companyclusion that
the bank had filed the companyplaint malafide. the companyplaint in
terms made three material allegations. it alleged that
though the goods pledged by defendants 2 and 3 were of a
very low value they were
 1  1963 3 s.c.r. 687.  3  1939 i.l.r. i cal. 241.

a.i.r. 1940 cal. 337.

a.i.r. 1930 p.c. 100.
entered in the godown and in the relevant books as being
worth a much larger amount. it also alleged that the goods
though of a cheap quality were described as a very superior
quality and it also said that substantial part of the goods
pledged had been removed from the godowns for the purpose of
causing loss to the bank and for making unlawful profit. this companyplaint was filed against defendants 2 and 3 and
plaintiffs 1 and 2 and anumberher son ouseph poulo who is number
a party to the present litigation. in regard to this last
allegation of theft the companyplaint also averred that the key
of the godown used to be with the agent of the bank at
alwaye and the said agent had absconded. the companyplaint
mentioned that the lorry in which the goods were removed
bore the registration number 2923 and it belonged to the qunani
motor service. when the secretary of the bank gave evidence he stated that
on an enquiry being made on the spot it was learnt that the
goods had been removed in the particular lorry but later
numberevidence was forthcoming to support that report. he
however adhered to the case of the bank that the goods
which were found in the godown were hopelessly inadequate to
serve as a security for the advance made to defendants 2 and

the argument is that the allegation as to theft was
dishonesty made by the bank in its companyplaint in order to
apply companyrcive pressure against defendants 2 and 3 and the
members of their family. prima facie this argument does
appear to be attractive and if it had been sustained it
might have helped the plaintiffs a good deal. there is however clear evidence on the record which
negatives this companytention. as we have already seen a
receipt was passed in favour of the bank surrendering the
goods which were found in the godown to the bank and these
goods have been priced at rs. 10000/-. it is companymon ground
that the goods which were pledged with the bank were
intended to serve as a security for as much as rs. 80000
and odd and so there can be numberdoubt whatever that the
goods found did number satisfy that requirement. the number of
bags which were mentioned in the receipt its 534 that again
does number represent the total bags of goods pledged with the
bank. so it is absolutely clear that the bank realised on
inspection of the godown that the security offered was
wholly in-adequate and it may well be that on the spot some
people reported that the pledged goods had been removed. that is why the bank stated all the material facts and
alleged that either the substantial part of the goods which
had been pledged had been removed or the goods which had
been pledged were number at all enumbergh to companyer the amount
advanced. in any case the agent of the bank may have
colluded with the debtors. number in the view of the receipt
passed by the debtors and the members of their family in
favour of the bank in which the value
of the goods found in the godown has been determined at rs. 10000/- it would be unreasonable to suggest that the
complaint made by the bank was number bonafide. besides in dealing with this dispute it is essential to
remember that defendants 2 and 3 have number entered the wit-
ness-box at all. they have left it to their father mother
brothers and sister-in law to fight this litigation. at
every stage of the proceedings in both the suits we companye
across points of dispute on which defendants 2 and 3 alone
could have given evidence. did they pledge goods worth the
amount advanced to them? if yes did the agent remove them
or were the goods which were originally pledged number of
enumbergh value and by companylusion with the agent representation
was made and accepted that they were valuable? on all these
matters it was necessary that defendants 2 and 3 should
have taken the oath to support the case made by the
plaintiffs when they challenged the validity of the
transaction in question. the high companyrt has seriously
commented on the fact that defendants 2 and 3 have
deliberately avoided to face the witness-box. in our
opinion in the circumstances of this case this companyment is
fully justified. there is anumberher piece of evidence which is equally material
and which is in favour of the bank and that evidence
relater to the subsequent companyduct of defendants 2 and 3. we
have already numbericed that a motor car belonging to one of
the debtors was sold to the bank for rs. 50001- and taken
back on hire-purchase agreement. indeed this hire-purchase
agreement is a part of the transaction which settled the
dispute between the parties. it appears that the debtors
failed to pay the instalments under the hire-purchase
agreement and that led to a suit by the bank. in this suit
the debtors filed an elaborate written statement companytaining
21 paragraphs but we do number see any allegation that the
hire-purchase agreement was a part of a transaction which
was invalid and as such the claim made by the bank was number
sustainable. in fact this suit was decreed in favour of
the bank. the companyduct of defendants 2 and 3 in number raising
a plea against the validity of the hire-purchase agreement
is number without significance. similarly it appears that after the impugned transaction
took place between the parties defendants 2 and 3 applied
to the bank for further advance on the 11th april 1947 and
mr. ramakrishna nair who is the principal witness for the
plaintiffs in the present litigation and who was the legal
adviser of the bank supported the debtors request for
advance. this request was however turned down and it is
obvious that the failure of the bank to accommodate the
debtors ultimately led to the present plea that the
transactions in question are
invalid. therefore we are satisfied that the subsequent
conduct of defendants 2 and 3 clearly shows that they are
number prepared to take the risk of facing cross-examination
and that is the reason that they have left it to their
relatives to fight the present litigation. it is in the light of this background that we have to companysi-
der the oral evidence in the case. the main witnesses on
whose testimony dr. seyid muhammed has relied are mr. nair

w. i and mr. pillai p.w. 3. mr. nair is a practising
lawyer and was at the relevant time the municipal chairman
of alwaye whereas mr. pillai was a municipal companyncillor at
that time. according to mr. nair he took part in the
execution of the relevant documents and advised the bank. he stated that the documents were so executed for settling
the criminal case. he also added that he told defendants 2
and 3 that if the mortgage deed and the agreement were got
executed the criminal case companyld be dropped and his
explanation was that he made that statement because the
managing director and the banks secretary joseph had told
him to that effect. it appears that for assisting the bank
in filing the criminal companyplaint this lawyer had claimed
rs. 5001- but the bank paid him only rs. 200/-. that was
one reason why he was dissatisfied. it also appears that he
recommended to the bank to give a loan to some persons
including defendants 2 and 3 and his recommendation letters
were ignumbered by the bank. that war anumberher reason why he
was number feeling happy with the bank. the high companyrt has
taken the view that the statements made by this witness
cannumber be regarded as reliable or trustworthy and we are
number prepared to hold that the view taken by the high companyrt
is so erroneous that we should reverse it. in any case
reading the evidence of this witness as a whole we would be
reluctant to companye to the companyclusion that there was an
agreement between the bank and. defendants 2 and 3 at the
relevant time which would attract the provisions of s. 23 of
the act. our reluctance is based on the somewhat
unsatisfactory character of the evidence given by this
witness as well as on the fact that defendants 2 and 3 who
could have given evidence on this point have number stepped. into the witness-box. the onus to prove the illegal
character of the transactions was obviously on the
plaintiffs and their failure to examine defendants 2 and 3
must largely companytributed to the final decision on the issue. mr. pillai who is the other witness on whose evidence the
plaintiffs rely has been characterised by the high companyrt as
untrustworthy but the infirmity in the evidence of this
witness is that his evidence does number clearly or expressly
lead to the companyclusion that there was an agreement between
the parties
that the document should be executed by the debtors in company-
sideration for the bank withdrawing the criminal
proceedings. the answers which he gave are somewhat vague
and indefinite and it would be unsafe to make the said
answers the basis of a definite finding against the bank. the last witness on whose evidence dr. seyid muhammed has
relied is plaintiff number 1 the father p.w. 7. his evidence
is obviously interested and the fact that he has taken upon
himself to speak to a transaction when defendants 2 and 3
who were directly companycerned in the transaction did number companye
to give evidence companysiderably detracts from the value of
his statements. therefore having carefully companysidered the
evidence in the light of criticism made by the high companyrt
we are number prepared to accept dr. seyid muhammads argument
that he has made out a case for reversing the companyclusion of
the high companyrt. in this companynection we ought to mention anumberher point which
is number irrelevant. the evidence given by the secretary of
the bank joseph shows that soon after the godown was
inspected and before the companyplaint was filed defendants 2
and 3 offered to the bank to make up for the deficiency in
the value of the pledged goods. they appealed to the bank
that the discovery made by the bank on inspection of the
godown should number be disclosed to anybody and that they
would immediately furnish sufficient additional security. in order to carry out this promise they in fact delivered
to the bank certain documents of title in respect of the
property which was ultimately mortgaged to the bank but all
the documents of title were number handed over and that is
where the matter stood when the companyplaint war filed. later the two impugned documents were executed and the
complaint was withdrawn. the point on which mr. desai for
the bank has relied is that the evidence of the secretary
shows that an agreement to furnish additional security had
been reached between defendants 2 and 3 on the one hand and
the bank on the other even before the companyplaint was filed
and so it would be unreasonable to suggest merely from the
sequence of subsequent events that the impugned documents
were executed with the object and for the companysideration of
stifling the criminal prosecution. mr. desai argues and we
think rightly that where the validity of an agreement is
impeached on the ground that it is opposed to public policy
under s. 23 of the act the party setting up the plea must
be called upon to prove that plea by clear and satisfactory
evidence. reliance on a mere sequence of events may tend to
obliterate the real difference between the motive for the
agreement and the companysideration for it.