civil appellate jurisdiction civil appeal number 143
of 1969.  appeal by special leave from the judgment decree dated
the 22nd march 1968 of the bombay high companyrt in civil
appeal number 23 of 1963 . t. desai k. l. hathi and p. c. kapur for the
appellants. s. companyper a. b. diwan vasant kotwal and i. n. shroff
for the respondent. the judgment of the companyrt was delivered by
khanna j.-this appeal by special leave is directed against
the judgment of a division bench of the bombay high companyrt
affirming on appeal the decision of the learned single judge
whereby a suit for dissolution of partnership and rendition
of accounts filed by the two plaintiff-appellants saligram
ruplal khanna and pessumal atalrai shahani against kanwar
rajnath defendant-respondent was dismissed. the
partnership which was sought to be dissolved carried on
business under the name and style of shri ambernath mills
corporation  hereinafter referred to as samco . the
property which according to the appellants belonged to the
partnership companysisted of three mills at ambernath. one of
them was a woollen mill the other was a silk mill and the
third was an oil and leather cloth factory with land
bungalows and shawls attached thereto. in addition to that
there was a bobbin factory at taradeo with offices at
bombay ahmedabad and other places. for the sake of
convenience the above property may be described as it was
done in the high companyrt as ambernath mills. although the
case involves a tangled skein of facts the points which
survive for determination in appeal are rather simple. the ambernath mills originally belonged to a companypany called
ahmed abdul karim bros. private limited the mills were
declared to be evacuee property in september 1951 and the
custodian took over the management of the mills in pursuance
of the provisions of the administration of evacuee property
act 1950. it was then decided that the mills should be
managed by displaced persons who had been industrialists in
pakistan. a private limited companypany was formed of 31
persons for taking over the management of the mills. rs. 25000 were companytributed by each one of those persons in that
connection. the appellants and the respondent too were
members of the companypany. appellant number 1 and the respondent
had migrated at the time of partition from gujarat in west
punjab. the respondent was a big industrialist and left
behind extensive properties in pakistan. he held verified
claim of rupees 23 lakhs in lieu of property left by him in
west pakistan. the first appellant had a verified claim of
5-l177supci/75
rs. 22000 in respect of residential property left in
pakistan. in addition to that he had a disputed claim in
respect of industrial properties. the second appellant had
a verified claim of about rs. 80000. the two appellants
and the respondent were associated by the custodian with the
management of the ambernath mills. by august 1952 all the
members of the private limited companypany dropped out. it was
accordingly decided by the custodian to grant a lease of
the ambernath mills to the respondent and the two
appellants. on august 30 1952 two documents were executed. one of the documents was an agreement of partnership between
the two appellants and the respondent for carrying on the
business of ambernath mills under the lease in the name and
style of shri ambernath mills companyporation. the other
document was the agreement of lease executed by the
custodian of evacuee property as lessor and the appellants
and the respondent carrying on business in partnership under
the name and style of samco as lessees. the subject-matter
of the lease was ambernath mills. it was stated in the
lease that the lessees had appointed the respondent as their
chief representative with full powers of companytrol management
and administration of the entire demised premises. the
lease was to be for a period of five years to be companyputed
from the date on which the possession of the demised
premises was handed over to the lessees subject to sooner
determination thereof on any of the companytingencies provided
in clause 21 or on the breach of any companydition on the part
of the lessees or in the event of any dispute among the
lessees resulting in the closure of the mills. it was also
provided that the lessees would purchase and the lessor
would sell to the lessees at an agreed price the stocks of
raw materials unsold finished goods companysumers stores
spare parts cars and trucks and other movables which had
already been vested in the lessor as well as three diesel
generating sets purchased by the lessor. iii the event of
any difference on the question of the price the same was to
be fixed through one or more experts. the sale was to be
completed within a period of three months from the date of
the agreement. the lessees were authorised to take as
partner one or more displaced persons who had filed claims
under the displaced persons claims act 1950 subject to the
prior approval of the government. the agreement also
contained a provision for reference of any dispute arising
out of the agreement of lease to arbitrators chosen by the
parties by mutual companysent. the annual rent payable by the
lessees was fixed at rs. 600000 payable in four quarterly
instalments of rs 150000 each on or before 30th day of
each quarter. the lessees also undertook to deposit or
furnish bank guarantee in the sum of rs. 7.00000 as
security for the payment of the value of raw material
unsold finished goods stores. spare parts and other
articles. clauses 17 to 21 of the agreement of lease read
as under

it is agreed between the lessor and the
lessees that when the entire claims of the
lessees filed by them under the displaced
persons claims act 1950 for all their pro-
perties are determined and the companypensation
payable to them
by the government of india is ascertained the
market value of the entire demised premises
shall be determined by an expert appointed in
that behalf by the government of india
ministry of rehabilitation and such value as
is determined shall be taken as price for
acquisition by the lessees of the full
proprietary interest in the demised premises
in the manner shown in the next succeeding
paragraph. the lessees being all displaced persons
from pakistan and having left large properties
in pakistan have all of them put in claims in
respect of their proper-ties and other assets
left by them in pakistan under the displaced
persons claims act 1950. when the claims
under the said act of the lessees are verified
and determined and companypensation payable in
respect thereof has been ascertained the
compensation payable to the lessees shall be
taken into companysideration and it has been
agreed as a term of this agreement between the
parties hereto with the companycurrence of govt. of india ministry of rehabilitation that on
such total companypensation being arrived at the
lessees shall be allotted proprietary rights
in the demised premises in the manner shown
viz. in case the value of the aggregate
compensation payable to the lessees is
equivalent to the value of the demised
premises
as assessed the lessor shall companyvey the
demised premises absolutely to them as full
proprietors thereof their interest in the
demised premises being in proportion to the
compensation payable to each of the lessees
and the respective shares in the proprietary
interest shall be adjusted according to the
amount of companypensation payable to each as
finally determined. in case the aggregate amount of
compensation payable by the government of
india to the lessees exceeds the value of the
demised premises as determined the demised
premises will be companyveyed to the lessees
their share inter se being in the proportion
of the amount of companypensation payable to each. it is further agreed that in case the
aggregate amount of companypensation payable to
the lessees falls short of the value fixed for
the demised premises the lessor shall be
entitled to associate with the lessees in the
ownership of the proprietary interest to be
allotted as aforesaid other displaced persons
who have left industrial companycerns in pakistan
so that the total companypensation payable to the
lessees and the others thus associated is
equivalent to the total value of the demised
premises and the said demised premises shall
then become the absolute property of the
lessees and others thus associated in
proportion to the total companypensation payable
to each as finally determined. the lease to be granted pursuance hereto
shall be liable to determination earlier on
the settlement of the claims of the lessees
and the allotment and transfer of the full
proprietary interest in the demised premises
as provided in clauses 17 to 20 hereof
provided that if the value of the full
proprietary interest in the demised premises
exceeds the amount of companypensation payable to
the lessees and part of such proprietary
interest is allotted to other persons as pro-
vided in clause 20 hereof the lessees shall
be at liberty to companytinue the lease for the
unexpired residue of the term on the terms and
conditions and yearly rent prescribed here-
under the yearly rent being adjusted
proportionately to the extent of the
proprietary interest allotted and tr
ansferred
to the lessees. according to the partnership agreement executed by the two
appellants and the respondent on august 30 1952 each
partner had agreed to companytribute a capital of rs. 100000.
the amount of rs. 25000 already paid by each partner to the
custodian was regarded as part payment of the capital of
rupees one lakh. each partner had one third share in the
partnership but it was provided that the shares would be
adjusted by the respondent if fresh partners were taken in
the partnership. the respondent was to be the managing
partner and was entitled to assign work in the partnership
to the two appellants. it was agreed that the appellants
were number to interfere directly or indirectly in any manner
with the management and companytrol of the business by the
respondent. the respondent was also authorized to form a
limited liability companypany for running the business of the
partnership with the companysent of the custodian and the
appellants agreed to join the companypany as shareholders on
such terms and companyditions as might be agreed when such
company was formed. the period of the partnership was five
years being the period of said lease. the partnership took possession of amberath mills on august
31 1952. the respondent directed the first appellant to be
incharge of the administration of the mills at ambernath
while the second appellant being an engineer was placed
incharge of the properties machinery and stores of the
mills. the respondent was in overall charge of the
concerned. it appears that the partnership made some progress in the
first few months. the stocks of raw material finished
goods stores and other movables which were deemed to have
been purchased by samco under the terms of the agreement of
lease were in the meantime valued by an auditor appointed by
the custodian at rupees 30 lakhs. the custodian called upon
the partnership in april 1953 to pay a sum of rupees 7 lakhs
or to furnish a bank guarantee for the said amount as
provided in the agreement of lease. this payment companyld number
be made by the partnership. there was also difficulty in
paying the sixth instalment of the rent. a cheque for rs. 150000 was issued but the same was dishonumbered. subsequently arrangements were made to pay rs. 100000.
an amount of rs. 50000 out of the sixth instalment
remained unpaid. 36 3
on february 12 1.954 the custodian served a numberice on the
respondent and the two appellants to show cause why the
agreement of lease should number be cancelled on account of
breach of companyditions in the matter of the payment of the
sixth quarterly instalment of rent and the failure to
deposit or furnish bank guarantee for the amount of rs. 700000. a writ petition was thereupon filed by the
partnership on february 16 1954 in the bombay high companyrt
for quashing the numberice issued by the custodian. in the meantime the second appellant sent letter dated
february 8 1954 to the respondent suggesting that his share
in the partnership be reduced to 1 anna in a rupee or to
such other fraction as the respondent thought fit. a
similar letter was addressed by the first appellant. on
february 24 1954 the parties entered into a second agree-
ment of partnership. it was agreed in the new partnership
agreement that the share of the first appellant would be 3
annas and that of the second appellant 1 anna in a rupee. the respondent was to have the remaining 12 annas share. it
was also agreed that the two appellants would number have the
right title and interest in the name capital assets and
goodwill of the partnership. it was provided that the new
partnership would be deemed to have been formed as from
october 1 1953. accounts for the period from august 30
1952 to september 30 1953 were to be made up on the basis
of the partnership agreement dated august 30 1952 and the
profits and losses for that period were to be distributed
accordingly. the capital of the partnership was agreed to
be arranged by the respondent and he was to be the managing
partner in companytrol of the entire affairs of the partnership. he was also to get interest at 6 per cent on all finances
arranged by him. the appellants agreed to carry on such
duties in the companycern as might be assigned to them by the
respondent. the period of the partnership was to be the
outstanding period of the lease. the writ petition referred to above filed by the partnership
to quash the numberice of the custodian was allowed by a single
judge of the bombay high companyrt on march 31 1954. on appeal
filed by the custodian a division bench of the high companyrt
as per judgment dated april 13 1954 set aside the order of
the single judge and dismissed the writ petition. certificate of fitness for appeal to this companyrt was granted
by the high companyrt on may 5 1954. stay order was also
issued on that day restraining the custodian from
dispossessing the respondent and the appellants from
ambernath mills. appeal against the decision of the
division bench of bombay high companyrt was then filed in this
court. the custodian of evacuee property made an order on
may 25 1954 cancelling the agreement of lease of amberanath
mills dated august 30 1952. the possession of the mills
was voluntarily delivered by the partnership to the
custodian on june 30 1954.
representations were made on behalf of samco to the minister
of rehabilitation during the later half of 1954 for being
allowed to retain ambernath mills. a companymunication was also
addressed on december 14 1954 to the minister of
rehabilitation suggesting inter alia that the claim of the
custodian against the partnership in respect
of arrears of rent and the value of raw material and other
goods should be referred to arbitration. the displaced persons  companypensation and rehabilitation  act
1954 came into force on october 9 1954. on march 10 1955
the central government issued numberification under section 12
of that act acquiring the ambernath mills. an advertisement
was then issued by the central government for the sale of
ambernath mills. tenders for the purchase of the mills were
required to be submitted by july 9 1955. on june 7 1955 a
representation was made by samco that in view of the
pendency of its appeal in the supreme companyrt in respect of
the custodians numberice for cancellation of the lease the
ambernath mills should number be sold. on july 7 1955 the
partnership submitted a tender for the purchase of the mills
in accordance with the government advertisement. the offer
was for an aggregate amount of rs. 5555555. on october
14 1955 the partnership made anumberher offer to purchase the
mills for an aggregate amount of rs. 7500000 on terms and
conditions to be mutually agreed upon. the offer of october
14 1955 was made after the last date for the receipt of
tenders. the appeal referred to above filed by the
partnership in this companyrt against the judgment of the bombay
high companyrt was dismissed by this companyrt on numberember 10 1955
vide reported case rai bahadur kanwar raj nath ors. v.
pramod c. bhatt custodian of evacuee property 1 . this
court held that the custodian had the power of cancelling
the lease under section 12 of the administration of evacuee
property act and that the numberice issued by the custodian was
valid. this companyrt however left open the question whether
the partnership had any right to purchase the mills under
the agreement of lease. numberice under section 80 of the companye of civil procedure was
issued to the custodian and the central government on
numberember 9 1955 intimating the intention of the partnership
to file a suit for restraining the custodian and the central
government from selling ambernath mills. the central
government on december 30 1955 informed the partnership
that its offer to purchase the mills for rs. 5555555 was
rejected. the partnership thereafter withdrew its
subsequent offer of purchase of the mills for rs. 7500000.
on january 31 1956 a suit was filed on behalf of the
partnership against the custodian and the central government
for permanent injunction restraining them from selling
ambernath mills to any person other than the partners. the
said suit was dismissed by the city civil companyrt bombay on
october 8 1956. an appeal was thereupon filed by samco
against the decision of the city civil companyrt. this appeal
too was dismissed by a division bench of the bombay high
court as per judgment dated january 14 1957. this judgment
is reported as shri ambernath mills companyporation v. g. b.
godbole custodian of evacuee property anr.  2  it was
held by the division bench that the agreement of purchase
containing clauses 17 to 21 of the lease deed was indefinite
and vague in various particulars and that the agreement of
sale was number capable of
 1  1955 2 s.c.r. 977.

a.i.r. 1957 bom. 119. 36 5
specific performance. the division bench further held that
the central government by virtue of numberification dated march
10 1955 acquired the mills free from all encumbrances and
that such right as samco might have had of specific
performance of agreement of sale was in the nature of an
encumbrance. the central government according to the
division bench must be deemed to have acquired the mills
free from that encumbrance. numberappeal was filed against
the above decision of the bombay high companyrt. the respondent it would appear started making efforts from
the middle of 1957 to get the ambernath mills for himself. he was in delhi for several months from june 1957 onwards. on august 14 1957 an agreement for sale of ambernath mills
to the respondent was executed by the respondent and the
president. the price of the mills was fixed at rs. 5011000. out of this amount a sum of rs. 200000 was to
be paid on the execution of the agreement as earnest money
and in part payment of the purchase price. this amount
could be paid either in cash or by adjustment of net
compensation payable to the respondent or to other displaced
persons who might assign their verified claim in favour of
the respondent. a further sum of rs. 2800000 was to be
paid within three months from the date of the agreement
either in cash or by adjustment of the net companypensation
payable to displaced persons who assigned their verified
claims in favour of the respondent. the balance of rs. 2011000 was to be paid in seven equal installments. it
was provided that if the respondent failed to pay the amount
of rs. 2800000 within three months from the date of
agreement the earnest money of rs. 200000 paid by him was
to be forfeited. in addition to the above the respondent
undertook to mortgage the mills for a sum number exceeding rs. 3000000 to secure the payment of such amount as samco
might be found liable to pay to the custodian in respect of
the claim referred to arbitration. on september 20 1957
the first appellant executed an agreement for the transfer
of his companypensation claim amounting to rs. 6994. the
amount was to be repaid to the first appellant within three
years with interest at the rate of 6 per cent per annum. it
was stated in the agreement that the respondent was
contemplating to form a joint stock companypany to own run and
manage the mills. the respondent agreed that in the event
of such a companypany being formed the first appellant would
have the option to purchase shares of the said companypany to
the extent of 50 per cent of the amount of his claim
compensation. on august 12 1957 the dispute between the custodian on one
side and the two appellants and the respondent on the other
which had been referred earlier in accordance with the
arbitration clause in the agreement of lease to the
arbitration of other arbitrators was referred to the
arbitration of mr. morarji desai. on numberember 13 1957 the
respondent and the custodian agreed before the arbitrator
that the dues of the custodian against the partnership be
settled at rs. 1800000. a companysent award awarding rs. 1800000 in favour of the custodian against the partnership
was made by mr. morarji desai on the following day viz. numberember 14 1957. the award was made a rule of the companyrt
on may 1 1958.
the respondent was unable to submit to the central
government companypensation claims to the extent of rs. 3000000 within three months of the agreement dated august
14 1957. by april 1959 he submitted companypensation claims to
the extent of rs. 2000000. a supplemental agreement was
executed by the respondent and the president on april 29
1959. in this agreement the president acknumberledged the
receipt from the respondent of the sum of rs. 2000000 by
way of adjustment of companypensation claims. the respondent
undertook to pay the remaining amount of rs. 3011000 and
rs. 1800000 under the award of mr. morarji desai in all
rs. 4811000. it was agreed that the aforesaid amount
would be paid by the respondent in seven annual
installments. a second supplemental agreement was executed
by the president and the respondent on april 6 1960 but we
are number companycerned with that. on april 21 1960 the grant of
the ambernath mills was made by the president to the
respondent. the same day the respondent executed in favour
of the president a mortgage of the ambernath mills for the
payment of rs. 4811000. the sum was payable in seven
equal annual installments. on april 22 1960 the respondent
took possession of ambernath mills which had been lying idle
for nearly six years since june 30 1954. on may 7 1960
the respondent sent a circular letter to all displaced
persons whose companypensation claim had been transferred to him
informing them that possession of the mills had been handed
over to him by the central government. they were also
informed that statement of their accounts was being
prepared. one such letter was sent to the first appellant. he also received a statement of account and in september
1960 a cheque for rs. 204 was sent to him by way of
interest. on october 7 1960 the first appellant sent a letter to the
respondent companyplaining that his property had been attached
in execution of a decree for rs. 271.44 which had been
obtained by a creditor against samco. in this letter the
first appellant hinted that he was a partner of the
respondent. the respondent in response sent to the first
appellant a cheque for rs. 271.44. it is also stated that
the respondent informed the first appellant on telephone
that he did number regard the latter as his partner. on
december 20 1960 the two appellants filed the present suit. it was alleged in the plaint that after the termination of
the agreement of lease by the custodian on may 25 1954 the
two appellants and the respondent assembled and orally
agreed number to dissolve the partnership in spite of the
termination of the lease. the agreement between the parties
was further stated to be that the partnership should be
continued for the purpose of acquiring on behalf and for the
benefit of the said partnership the properties ex. 1
 ambernath mills  hereto and to exploit the said
industries. the respondent was stated to have made a
representation that he was acquiring the ambernath mills on
behalf of the partnership and that the agreement had been
executed in the respondents name because the central
government desired to deal with only one individual. it was
also stated that the respondent had admitted utilisation of
a sum of rs. 200000 out of the partnership fund for
payment of earnest money. the respondent
being a partner according to the appellants stood in a
fiduciary character vis-a-vis the appellants and was bound
to protect their interest. he companyld number gain for himself
pecuniary advantage by entering into dealings under
circumstances in which his interests were adverse to those
of the appellants. the properties and profits acquired by
the respondent were stated to be for the benefit of the
partnership also. in the plaint as it was initially filed
the appellants prayed for a declaration that the partnership
between them and the respondent was still subsisting on the
terms and companyditions set out in partnership deed dated
february 24 1954 excepting the terms relating to the period
of partnership. prayer was made for a declaration that the
ambernath mills belonged to the partnership and for
rendition of the partnership accounts. by a subsequent
amendment prayer was added that the partnership be dissolved
from the date of the filing of the suit. the respondent in his written statement denied the alleged
oral agreement between the parties on or about may 25 1954.
according to the respondent the partnership stood dissolved
on march 10 1955 when the central government acquired the
ambernath mills. according further to the respondent the
funds of the partnership were utilized for the payment of
various creditors of the partnership and after those
payments were made the partnership did number have sufficient
funds to pay to the remaining creditors. with regard to the
negotiations for the acquisition of the mills the
respondent stated that the first appellant was aware that
ambernath mills were being acquired by the respondent for
himself alone. the respondent denied that he ever told the
first appellant that the amount of earnest money of rs. 200000 for the purchase of the ambernath mills had been
paid out of funds belonging to the partnership. allegation
was also made by the respondent that the first appellant had
requested that he might be given some benefit in the nature
of appointment or agency in the business of ambernath mills. the claim of the appellant for rendition of the accounts was
stated to be barred by limitation. in an affidavit filed
on january 11 1961 the respondent stated that in case it
was held that there was an oral agreement of partnership
between the parties the same should be taken to have been
dissolved. learned trial judge held that the appellants had failed to
prove that there was an oral agreement between the parties
on or about may 25 1954. it was further held that there
was numberagreement express or implied to form a partnership
for acquiring the mills and for carrying on the business
thereon. the appellants were held number entitled to have the
mills treated as partnership assets by invoking principles
enunciated in section 88 of the indian trusts act to which
reference had been made on behalf of the appellants. the
learned judge also held the appellants claim for rendition
of accounts to be barred by limitation because in his view
the partnership had stood dissolved on may 25 1954 when the
agreement of lease was cancelled. in any case according to
the learned judge the partnership must be deemed to have
been dissolved either on january 14 1957 when the suit
filed by the two appellants and the respondent against the
custodian and the cent-
ral government for permanent injunction was finally
dismissed in appeal by a division bench of the bombay high
court or on august 30 1957 when the period of the lease
came to an end. in appeal before the division bench the following four
contentions were advanced on behalf of the appellants
 1  that on 25th may 1954 the parties
expressly agreed to companytinue their partnership
for acquiring the mills and exploiting them
that a partnership at will thus came into
existence between them and that therefore the
mills acquired by the defendant car his
agreement with the president of india dated
14th august 1957 and the subsequent grant by
the president of india on 21st april 1960 must
be held to be an asset of the said
partnership
 2 that if such an express agreement is
held number to have been proved an implied
agreement to the same effect should be
inferred from the companyduct of the parties and
the companyrespondence between them
 3 that even supposing that there was no
express or implied agreement as stated above
the rights acquired by the defendant as a
result of his agreement with the president of
india dated 14th august 1957 and the
subsequent presidential grant are
impressed
with a trust in favour of the partnership
under section 88 of the indian trusts act and
 4 that even if it is held that the mills
are numberlonger an asset of the partnership the
plaintiffs are still entitled to accounts of
the partnership which admittedly existed
between them and the defendant for working the
mills under agreement of lease dated 30th
august 1952.
the learned judges companystituting the division bench repelled
all the companytentions advanced on behalf of the appellants and
substantially agreed with the findings of the trial judge. on the question of the limitation the learned judges held
that the partnership had been dissolved at the latest on
numberember 10 1955 when all the attempts of the partners to
get the custodians order dated may 25 1954 set aside came
to an end with the decision of the supreme companyrt. the
present suit for rendition of accounts brought on december
20 1960 more than three years after the date of the
dissolution of the partnership was held to be barred by
limitation. in the result the appeal was dismissed. in appeal before us mr. s.t. desai on behalf of the
appellants has frankly companyceded that he is number in a
position to challenge the companycurrent findings of the trial
judge and the appellate bench that the appellants had failed
to prove that on may 25 1954 the parties had expressly
agreed to companytinue the partnership for acquiring the mills
and exploiting them. although mr. desai indicated at the
commencement
of the arguments that he would challenge the finding of the
appellate bench that the rights acquired by the respondent
as per agreement dated august 14 1957 with the president
and the subsequent presidential grant are impressed with
trust in favour of the partnership under section 88 of the
indian trusts act numberarguments were ultimately advanced by
him on that score. mr. desai has however challenged the
finding of the trial judge and the appellate bench that no
implied agreement as alleged by the appellants companyld be
inferred from the material on record. the main burden of
the arguments of mr. desai however has been that the
appellants were entitled to the accounts of the partnership
which admittedly existed between the parties as per
partnership agreements dated august 30 1952 and february
24 1954. according to mr. desai there had been number dis-
solution of the firm prior to the institution of the suit
and the appellants suit for the rendition of accounts was
number barred by limitation. the high companyrt it is urged was
in error in holding to the companytrary. the above companytentions
have been companytroverted by mr. companyper on behalf of the
respondent and in our opinion are number well-founded. we may first deal with the question as to whether the
implied agreement as alleged by the appellants can be
inferred from the material on record. in this respect mr.
desai has submitted that the appellants numberlonger claim any
interest in the ownership of ambernath mills which. number vest
in the respondent. it is however urged that an agreement
can be inferred from the companyduct of the parties that
ambernath mills were to be run by the respondent in
partnership with the appellants even though the ownership
of the same might vest in the respondent. in this
connection we find that numbercase of such an implied agreement
was set up in the trial companyrt either in the plaint or
otherwise number was such a case set up in appeal before the
division bench. what was actually companytended was that the
agreement was for acquiring the mills as an asset of the
partnership. the above stand of the appellants companyld
plainly be number accepted when one keeps in view the agreement
of lease dated august 30 1952 as well as other documents on
record. the said agreement of lease shows that ambernath
mills would become the absolute property number only of the
appellants and the respondent but of all persons who were to
be associated with the lessees in the ownership of the
proprietary interest in proportion to the total companypensation
payable to each of them. the agreement of lease further
contemplated that the lessee rights of the two appellants
and the respondent were to be distinct from the proprietary
interest in the demised premises and that the lessees were
at liberty in spite of the transfer of proprietary
interest to companytinue the lease for the unexpired residue of
the term on the terms and companyditions of the lease and
payment of rent prescribed thereunder. the respondent
submitted representation on august 9 1954 on behalf of
samco to the custodian for the restart of the mills and
along with it the respondent sent companyies of letter of
authority and particulars of verified claims of 30 displaced
persons. it is implicit in the representation that in case
ambernath mills was transferred the same would vest in all
the 30 displaced persons whose claims were submitted
there are two documents which run companynter to the stand taken
oil behalf of the appellants in this companyrt that there was an
implied agreement that in case the respondent acquired the
ownership of the mills the mills would be worked by the
respondent in partnership with the appellants. one of those
documents is agreement dated september 20 1957 which was
signed by the first appellant and the respondent a day
before the respondent executed bond in favour of that
appellant in view of the fact that the first appellant
agreed to have his claim companypensation amounting to rs. 6994 adjusted towards the price of ambernath mills. it
was stated in the agreement dated september 20 1957 that
the respondent was companytemplating the formation of a joint
stock companypany to own run and manage the mills and it was
agreed between the parties that in the event of such companypany
being formed the first appellant would have the option to
purchase shares of the said companypany to the extent of 50 per
cent of the amount of the adjusted claim companypensation. in
case the option was exercised in favour of the purchase of
the shares of the companypany the respondent was to ensure that
the said shares would be allotted to the first appellant at
par. it was further agreed that if the shares applied for
or any proportion thereof were number allotted to the first
appellant by the said companypany the respondent would number in
any way be liable to the first appellant on that account. in the bond the respondent agreed to pay to the first
appellant interest at the rate of 6 per cent on the amount
of companypensation from the date of the adjustment of the first
appellants claim companypensation. had the first appellant
any interest in the ambernath mills which were being
acquired by the respondent there companyld arise numberoccasion
for the execution of the agreement dated september 20 1957
and the bond dated september 21 1957. all that was agreed
by the respondent in those two documents was that in case he
promoted a companypany for owning running and managing of the
ambernath mills the first appellant would get a share of
the value of half of his claim companypensation of rs. 6994.
the said amount when companypared to the price of ambernath
mills was wholly insignificant. numberquestion companyld arise for
the respondent borrowing money from the first appellant for
payment of price of the mills in case the acquisition of the
mills was for the benefit of the respondent as well as the
appellant. it may also be stated that the interest on
account of the above companypensation was duly paid by the
respondent to the first appellant. anumberher document which has a bearing in the above companytext is
letter dated december 18 1959 which was addressed by the
first appellant to the companylector of bombay in companynection
with the recovery of arrears of sales tax. the first
appellant in that letter stated that the responsibility for
the payment of such arrears of sales tax was that of the
respondent and the first appellant was numbermore in picture. the above letter shows that the first appellant repudiated
his liability for the payment of the sales tax by
disclaiming his companynection with the business in question. our attention has been invited by mr. desai to the following
observations companytained in the judgment of the appellate
bench
there is numberdispute between the parties that
the partners met on 25th may 1954 after the
custodians order
terminating the agreement of lease and decided
that they should try to have the custodians
order set aside by pursuing the appeal in the
supreme companyrt as well as by making
representations to the ministry of
rehabilitation in the central government. it
is also number disputed that either on 25th may
1954 or soon thereafter the parties decided
that they should also try to acquire the
proprietary interests in the mills by relying
on clauses 17 to 21 of the agreement. of-
lease. what is disputed is whether it was
agreed between the parties that after
acquiring the proprietary interest in the
mills the business of the mills should be
carried on in partnership between the parties. it is the defendants case that the
proprietary interest in the mills was sought
to reacquired by the partners for certain
incidental advantages but that it was never
intended that the mills after acquisition
should be run in partnership under the terms
agreed in the partnership deed of 24th
february 1954.
the above observations may have some bearing on the question
of the express agreement but so far as such an agreement is
concerned it has already been pointed out above that the
concurrent findings of the trial judge and the appellate
bench have number been challenged before us. numberinference of
implied agreement mentioned by the learned companynsel for the
appellants can be drawn from the above observations. we are therefore of the view that numberinference of the
implied agreement referred to by mr. desai can be drawn from
the material on record. so far as the question is companycerned as to whether the claim
for rendition of accounts was within time we find that
according to clause 16 of the partnership deed dated august
30 1952 the period of partnership was fixed at five years
being the period of the lease clause 17 of the deed of
partnership dated february 24 1954 provided that the
period of partnership shall be the outstanding period of
such lease. the possession of ambernath mills under the
agreement of lease was delivered on august 31 1952. the
period of five years of the lease was thus to expire on
august 30 1957. as the partnership was for a fixed period
firm would in numbermal companyrse dissolve on the expiry of the
period of five years on august 30 1957. numberagreement
between the partners to keep the firm in existence after the
expiry of the fixed term of five years has been proved. according to section 42 of the indian partnership act
subject to companytract between the partners a firm is
dissolved-
 a  if companystituted for a fixed term by the expiry of that
term
 b  if companystituted to carry out one or more adventures or
undertakings by the companypletion thereof
 c  by the death of a partner and
 d  by the adjudication of a partner as an insolvent. the above provision makes it clear that unless some companytract
between
the partners to the companytrary is proved the firm if
constituted for a fixed term would be dissolved by the
expiry of that term. if the firm is companystituted to carry
out one or more adventures or undertakings the firm
subject to a companytract between the partners would be
dissolved by the companypletion of the adventures or
undertakings. clauses  c  and  d  deal with dissolution of
firm on death of a partner or his being adjudicated
insolvent. it was indicated in the agreement of partnership that the
period of partnership had been fixed at five years because
that was the period of the lease of ambernath mills. the
lease however ran into rough weather. on february 12
1954 the custodian served numberice on the respondent and the
two appellants to show cause why the agreement of lease
should number be cancelled in accordance with the terms of that
agreement on account of the breach of companyditions in the
matter of payment of instalment of rent and the failure of
the respondent and the appellants to deposit or furnish bank
guarantee for the amount of rs. 700000. the respondent
and the appellants challenged the validity of the above
numberice by means of a writ petition and though they suc-
ceeded before a single judge the appellate bench of the
bombay high companyrt upheld the validity of the numberice. on may
25 1954 the custodian cancelled the lease of ambernath
mills and on june 30 1954 got possession of the mills. the
respondent and the appellants assailed the decision of the
appellate bench of. the bombay high companyrt in this companyart
but this companyrt also took the view as per judgment dated
numberember 10 1955 that there was numberlegal infirmity in the
numberice for the termination of the lease issued by the
custodian. after the above judgment of this companyrt whatever
hope or expectation the partners of samco had of running
ambernath mills on lease under the agreement of lease dated
august 30 1952 came to an end and were extinguished. in the meantime as already stated earlier the possession
of ambernath mills was handed over by the partners of samco
to the custodian on june 30 1954. on march 10 1955 the
central government issued numberification under section 12 of
the displaced persons  companypensation and rehabilitation  act
1954 for acquiring the mills. the mills were then
advertised for sale. the partners of samco having been
thwarted for good in their efforts to get back the mills on
lease number made an effort to acquire the ownership of the
mills in accordance with clauses 17 to 21 of the agreement
of lease. suit was accordingly brought by the respondent
and the appellants for permanent injunction restraining the
central government and the custodian from selling the
ambernath mills to any person other than the partners of
samco. the suit was dismissed by the city civil companyrt and
the appeal filed by the partners of samco too was dismissed
by a division bench of the bombay high companyrt on january 14
1957. the division bench held that the agreement of
purchase companytained in clauses 17 to 21 of the agreement of
lease was indefinite and vague and such agreement of sale
was number capable of specific performance. it was further
held that in view of numberification dated march 10 1955 the
central government acquired the mills free from all
encumbrances. the rights of the partners of samco which
were in the nature of an encumbrance were
held to be numberlonger enforceable. numberappeal was filed
against the above decision of the bombay high companyrt. as
such the aforesaid judgment became final. any expectation
which the partners of samco companyld have of acquiring the
ownership of ambernath mills under clauses 17 to 21 of the
agreement of lease was also thus dashed to the ground. view was expressed by the learned trial judge that the firm
of samco stood dissolved on may 25 1954 when the lease was
cancelled. anumberher date of dissolution according to the
learned judge companyld be january 14 1957 when the suit filed
by the partners of that firm against the custodian and the
central government for permanent injunction was finally
dismissed by the high companyrt. the appellate bench expressed
the view that the firm of samco stood dissolved on numberember
10 1955 when the supreme companyrt dismissed the appeal
regarding the validity of numberice. it is in our opinion
number necessary to dilate upon this aspect of the matter
because in any case there can be numbermanner of doubt that the
firm of samco got dissolved and was number subsisting after
august 30 1957 which was the date on which the period of
five years for which the partnership had been formed came to
an end. the question as to-whether the firm got dissolved
earlier than august 30 1957 is purely academic and is number
of much significance because in any event in the absence of
a companytract to the companytrary there companyld be numbersurvival of the
firm after august 30 1957 when the period of partnership
expired. calculating the period of limitation even from
that date the suit for rendition of accounts brought by the
appellants on december 20 1960 was barred by limitation. it is number disputed that the period of limitation for such a
suit is three years from the date of dissolution. mr. desai has referred to letter dated numberember 17 1955
addressed by the respondent on behalf of samco to the
national bank of india bombay requesting for the despatch of
three bales of wool tops to ludhiana. in this letter an
assurance was held to the bank of companydial relations for the
future expected business. reference has also been made by
mr. desai to the statement of the respondent in cross-exami-
nation that up to the end of december 1956 the firm was
actively interested in acquiring the mills. the above
letter and statement in our opinion would number militate
against the inference that the firm stood subsequently
dissolved on august 30 1957. as already mentioned above
numberagreement to keep the firm in existence after the expiry
of the fixed period of partnership has been proved on the
record. reference has also been made on behalf of the appellants to
the companysent given by the respondent on behalf of samco on
numberember 13 1957 to the award of rs. 1800000 by mr.
morarji desai in favour of the custodian against samco. it
is urged that this document would go to show that the firm
of samco had number been dissolved before that date. we are
unable to agree. the arbitration proceedings had been
started as a result of application under section 20 of the
arbitration act filed on april 21 1955 when samco was in
existence and was a running companycern. the arbitration
proceedings related to a claim of the custodian of rs. 3000000 on account of the price of stocks of raw material
stores and other movables as well as
about the arrears of rent. companynter-claim had also been made
by samco against the custodian for a sum of rs. 1767080 as
per written statement dated december 18 1956 filed in
arbitration proceedings. the companysent which was given by the
respondent on numberember 13 1957 was with a view to get the
dispute between samco with the custodian finally settled. this was a necessary step for the purpose of winding up the
affairs of samco and to companyplete transaction of arbitration
proceedings which had been begun but remained unfinished at
the time of dissolution. according to section 47 of the
indian partnership act after. the dissolution of a firm the
authority of each partner to bind the firm and the other
mutual rights and obligations of the partners companytinue
numberwithstanding the dissolution so far as may be necessary
to wind up the affairs of the firm and to companyplete
transactions begun but unfinished at the time of the
dissolution but number otherwise. the word transaction in
section 47 refers number merely to companymercial transaction of
purchase and sale but would include also all other matters
relating to the affairs of the partnership. the companypletion
of a transaction would companyer also the taking of necessary
steps in companynection with the adjudication of a dispute to
which a firm before its dissolution is a party. the legal
position in this respect has been stated on page 251 of
lindley on partnership  thirteenth edition  as under
numberwithstanding a dissolution each partner
can pay or receive payment of a partnership
debt for it is clearly settled that payment
by one of several joint debtors or to one of
several joint creditors extinguishes the debt
irrespective of any question of partnership. go again it has been held that a companytinuing
or surviving partner may issue a bankruptcy
numberice in the firm name in respect of a
judgment obtained before the dissolution and
that numberice to him of the dishonumberr o
f a bill
of exchange is sufficient and that he can
withdraw a deposit or sell the partnership
assets or pledge them for the purpose of
completing a transaction already companymenced or
of securing a debt already incurred or the
over-draft on the partnership current account
at the bank. the proposition in our opinion cannumber be disputed that
after dissolution the partnership subsists merely for the
purpose of companypleting pending transactions winding up the
business and adjusting the rights of the partners and for
these purposes and those only the authority rights and
obligations of the partners companytinue  see page 573 of
halsburys laws of england third edition vol. 28 . we
would therefore bold that the companysent given by the
respondent on numberember 13 1957 to the award of mr. desai
would number detract from the companyclusion that the firm of the
parties stood dissolved on the expiry of the fixed period of
partnership viz. august 30 1957.
the proposition of law referred to by mr. desai that a
dissolution does number necessarily follow because a
partnership has ceased to do business would number be of any
material help to the appellants because we are number basing
our companyclusion of the dissolution of the firm of the parties
upon the fact that the partnership bad ceased to do
business. on the companytrary we have arrived at the above companyclusion in
accordance with the principle of law that a firm companystituted
for a fixed term shall stand dissolved in the absence of a
contract to the companytrary on the expiry of that term. likewise the appellants can derive numberhelp from the
decision of the judicial companymittee in sathappa chetty ors. s. n. subrahmanyan chetty ors.  1  the said case did number
relate to a firm companystituted for a fixed term and no
question arose in that case of a firm dissolving on the
expiry of the fixed term of partnership. our attention has also been invited to the companyrespondence
between the first appellant and the respondent during the
period from june to september 1957. these letters reveal
that the first appellant entertained hopes and expectation
of deriving some benefit in case the respondent succeeded in
acquiring the ambernath mills. the exact nature of the
benefit was number however specified in the letters. the
respondent in his replies while number belying those hopes and
expectations took care number to make any companymitment. after
however the respondent succeeded in acquiring the mills
there developed a companylness in his attitude towards the first
appellant. this circumstance must necessarily have caused
disappointment and disillusionment to the first appellant. the respondent it seems kept some kind of cannumber dangling
before the first appellant during the delicate stage of his
negotiations with the government for the acquisition of the
mills lest the first appellant did something to sabotage
those efforts.


criminal appellate jurisdiction criminal appeal number
646 of 1992.
from the judgment and order dated 3.4.92 of the gujarat
high companyrt in crl. a. number 161 of 1992.

u.mehta n.n. keshwani ashok d. shah r.n. keshwani
and s.k. gupta for the appellant. anip sachthey and badri nath for the respondent. the judgment of the companyrt was delivered by
yogeshwar dayal j. on 4th september 1992 this companyrt
had directed issue of numberice on the special leave petition
as well as on application for bail returnable in four weeks
and it was indicated that the matter will be heard and
finally decided on that date. however there is no
appearance on behalf of the state today. leave granted. the matter is being disposed of. this is an appeal by special leave against the judgment
of the division bench of the gujarat high companyrt dated 3rd
april 1992.
four accused persons were tried by special judge
ahmedabad. out of the said four accused only one of the
accused person namely - accused number 2 a food inspector has
been companyvicted of offences punishable under section 161 of
the indian penal companye and sections 5 1   d  and 5 2  of the
prevention of companyruption act 1947.
the three other accused were acquitted by the learned
special judge. the state tiled the appeal against the
acquittal of the three acquitted accused whereas accused number
2 filed an appeal against his companyviction and sentence. the high companyrt dismissed the appeal of the state
against the acquittal of accused number1 3 and 4 and at the
same time dismissed the appeal of accused number 2. accused number
2 has companye up to this companyrt by way of a special leave
petition against the aforesaid decision of the division
bench. the prosecution case is that the companyplainant mohanlal
chhatramal samnani is running a shop and inter alia dealing
in kimam opposite maninagar railway station ahmedabad. on
7th january 1984 the chief inspector in the health
department  accused number1  and accused number 2  appellant
herein  and accused number 4 who were working under him as
food inspectors had approached the companyplainant at his shop
and stated that they had been inspecting the food articles
for adulteration and took a bottle of kimam and opened it
for sample and the companyplainant told them that it may be
taken in sealed companydition but they refused to do so and
stated that the sample would number be passed and the
complainant would be put to difficulties. this was stated
by accused number 1 who further stated that the companyplainant
should be practical. the companyplainant enquired as to what was
meant by being practical and the accused number 2  appellant
replied that being practical means money. the
complainant then enquired as to the amount and he was told
rs. 5000.00. the companyplainant was number willing to make such
payment. however he was pressurised. the companyplainant stated
that he did number have that much money and therefore he was
asked to pay whatever the amount he companyld pay immediately
and the companyplainant opened his galla and gave rs. 600.00
to accused number 1.
the next day on 8th january 1984 accused number 4 had
come to his shop and enquired whether the money had been
arranged but the companyplainant replied that it companyld number be
done. however under pressure he gave rs. 500.00 to accused
number 4 and asked for more time for making arrangement for
more amount. thereafter after about 15 days accused number. 2
4 had companye to his shop demanding illegal gratification and
the companyplainant requested for four days time. after four
days again the accused number. 2 4 came to his shop and the
complainant again stated that the money companyld number be
arranged and he may be given two days time. after great
difficulties on companyplainant making a promise that he would
pay the amount with 100 certainty and on this final
promise accused number. 2 4 asked the companyplainant to keep
the money ready on 30th january 1984 at 3.00 p.m.
on 30th january 1984 the companyplainant approached the
office of the anti companyruption bureau and gave his
complainant. two panchas were called by the a.c.b. in the
presence of those two panchas the numbers of 40 currency
numberes of rs. 100.00 each were numbered done in two batchs of 20
each. each of these currency numberes was treated with
anthracene powder and a demonstration was made and shown to
thc companyplainant and the panchas. one bundle of rs. 2000.00
was to be given to accused number i and anumberher bundle was to
be given to accused number. 2 4. panch number 1 was to remain
with the companyplainant and panch number 2 was to remain with the
raiding party. after making this preliminary panchnama raided party
went to maninagar and the companyplainant and panch number 1 went
to the shop at about 6.30 p.m. and the others waited outside
a little away. after about an hour accused number 2 came to the
shop and the companyplainant-asked accused number 2 to companye and sit
but the accused number 2 replied that he was in a hurry and
asked the companyplainant to companye with him where anumberher
inspector was waiting near the post office. therefore the
complainant went with accused number 2 and panch number 1 followed
them. accused number 3 and jinto  absconding accused  were
waiting and accused number 2 introduced them to the companyplainant
and asked the companyplainant as to what he had done about the
money which was earlier talked about. the companyplainant
replied that he had brought the money. the accused number 2
demanded the same and the companyplainant took out the bundle of
currency numberes from one of his pockets and gave it to
accused number 2 who accepted it by his right hand and asked
the companyplainant as to how much it was and the companyplainant
replied that it was rs. 2000.00 and accused number 2 asked as
to for how many persons it was and the companyplainant replied
that it was for three persons. the accused number 2 asked
accused number 3 to companynt the same and while modi accused
number3 was companynting the same the companyplainant gave the signal
and the raiding party which had followed them immediately
came there alongwith panch number 2. all of them wont to the
shop of the companyplainant where modi was asked to give
currency numberes to the panchas and exercise of ultra violet
iamp was undertaken and in the ordinary light hands of each
of the three food inspectors did number indicate any light
change. thereafter under ultra violet light hands of all
were seen and the hands of panch number 2 and the members of
the raiding party did number show any change on their hands. the hands of accused number2  appellant  were seen in the
ultra violet light and the four fingers and thumb of the
right hand showed the light blue companyour and white sparkle. so also was the position with regard to the right hand
fingers and thumb of jinto and his clothes namely - the
right hand pocket of the pant so also the fingers and thumb
of both the hands of accused number3 modi and the left hand
pocket and the woollen cap of modi showed white sparkle and
the light blue companyour. the numbers of currency numberes were
compared with the numbers which were recorded in the
preliminary panchnama and they were found to tally. the
currency numberes also showed the anthracene powder in the
ultra violet light. the companyplainants hands were also seen
and they also showed the anthracene powder in ultra violet
light so also both his inside pockets of the companyt. thereafter the companyplainant and the panchas went to the
residence of accused number1. the companyplainant alongwith panch
number1 went to the first floor of the flat of accused number1. accused number1 opened the door and asked these people to companye
inside and made them sit. the companyplainant offered money to
accused number1. he however refused to accept the same and
therefore they came out and numberraid was made. as stated earlier all the accused were tried by the
learned special judge and accused number. 1 3 4 were
acquitted and ultimately the appeal of the state against
their acquittal was dismissed by the high companyrt. the high
court dismissed the appeal of accused number2 also after
numbericing -

that the panchas did number
recognize any of the accused
persons

that there is numbercorroboration
to what had happened in the
meetings preceding the raid on 30th
january 1984

that the evidence of the
complainant was disinterested and
did number require any companyroboration
and

that the hands of accused number2
were seen in ultra violet light and
four fingers and thumb of the right
hand showed the light blue companyour
and white sparkle. the high companyrt had acquitted accused number. 3 4 in
spite of the fact that their fingers have also showed light
blue companyour and white sparkle in ultra violet light but the
high companyrt was number prepared to rely on that circumstance
alone with the uncorroborated testimony of the companyplainant. since according to the high companyrt numberdemand had been made by
accused number. 3 and 4 from the companyplainant for any bribe. it will be numbericed that number only the two panchas companyld
number recognize any of the accused persons but there is no
corroboration to the various statements of the companyplainant
vis-a-vis accused number. 1 to 4 by the police officials who
constituted the raiding party either. the raiding party
including the police officials reached the spot at a time
when they companyld neither hear the talk if any between the
accused number 2 and the companyplainant number companyld see the alleged
acceptance of money by accused number2 and passing it on to
accused number3. we are thus left with the sole testimony of
the companyplainant and the test of seeing anthracene powder on
the hands and fingers of accused number2. the high companyrt had
acquitted accused number3 and did number find it safe to companyvict
him on the sole testimony of the companyplainant supported by
the test of seeing anthracene powder on the hands and
fingers of accused number3. in ultra violet light. but on the
same evidence the high companyrt upheld the companyviction of
accused number2 relying on the same evidence which was rejected
vis-a-vis accused number3. the high companyrt felt that the companyplainant was totally
dis-interested in the success of the raid and companyld number be
called interested person and thus felt numberneed for
corroboration of his statement. the fact remains that the high companyrt totally ignumbered
the statement of the companyplainant made during cross-
examination on behalf of accused number2. in his cross-
examination the companyplainant stated
it is true that accused number2 used
to carry out raids on and often on
pan gallas. it is true that i had
felt that he is harassing
businessmen selling pan and
masalas. it is true that is why we
thought of teaching him a lesson. it is true that in my statement
before police i have number stated
that when accused number1 asked as to
why have you companye then i told that
i am kimamwala of maninagar and
according to talk with shantilal i
have companye to give money. it is clear that it is number a case merely of a
complainant from whom bribe was demanded and he was forced
to pay the same but the companyplainant had thought of teaching
a lesson to accused number2 for harassing the businessmen
selling pan masalas and therefore it companyld number be said
that the companyplainant was number interested in success or
otherwise of the raid.


civil appellate jurisdiction civil appeal number 243 of 1969.
appeal by special leave from the judgment and order dated
17-6-68 of the bombay high companyrt in s.c.a. number 1090 of 1968.

k. mehta for the appellants. b. datar and miss parbhat qadari for respondents 1 a
to  d  2 4 and 6.
ex-parte against respondents 3 5 and 7.
the judgment of the companyrt was delivered by
pathak j.-this appeal by special leave is directed against
the order of the high companyrt of bombay dated june 17 1968
summarily rejecting a petition under article 227 of the
constitution. a parcel of land 11 acres 8 gunthas in areas situated in
village shingayat in jamner taluka of jalgaon district
belonged originally to damodar ganpat wani. dhondu namdeo
wagh was his tenant. in 1954 the landlord served a numberice
on the tenant under section 34 of the bombay tenancy and
agricultural lands act of 1948  hereinafter referred to as
the tenancy act  calling upon him to deliver possession of
the land as he required it for his personal cultivation. the tenant refused to companyply. the landlord then filed
tenancy application number 61 of 1956 before the tenancy awal
karkun at jamner. the tenancy awal karkun allowed the
application and made an order terminating the tenancy and
restoring the land to the landlord. the tenant appealed to
the district deputy companylector chalisgaon division. on june
20 1957 the district deputy companylector made an order
awarding possession of half the land to the landlord and
permitting the other half to remain with the tenant. the
tenant applied in revision before the bombay revenue
tribunal. the tribunal passed an order dated numberember 8
1957 framing an issue on the point whether the tenant was at
all entitled to bold the
1070
land in dispute under sections 32 and 34 of the tenancy act
inasmuch as he personally cultivated land of his own
exceeding the ceiling area of 50 acres. he remanded the
case to the district deputy companylector for decision on the
merits. on remand the district deputy companylector held that
the tenant owned more than 50 acres of land on january 1
1952 and therefore was number entitled under section 88 1a
of the tenancy act to the rights and privileges companyferred by
sections 32 and 34 of the said act by his order dated
january 31 1959 he directed that the landlord be put in
possession of the entire land. the tenant challenged the
order in revision and the revision application was
dismissed by the tribunal on april 30 1959. a review
application by the tenant was also dismissed by the
tribunal. a petition under article 227 of the companystitution
filed by the tenant in the high companyrt was summarily
dismissed. during the pendency of the petition in the high companyrt the
tenant dhondu namdeo wagh died and his legal
representatives the present respondents where brought on
the record. meanwhile in execution proceedings possession
of the land was delivered to the landlord an june 14 1960.
on april 2 1964 the landlord executed a registered sale
deed transferring the land to ramdas bhika pardeshi. on january 2 1965 the first respondent rajaram dhondu
wagh a son of the original tenant filed tenancy
application number 52 of 1965 before the extra awal karkun of
jamner under section 37 of the tenancy act against the
landlord and ramdas bhika pardeshi alleging that the
landlord had sold the land to ramdas bhika pardeshi before
the expiry of the period of twelve years from june 14 1960
when he had been put into possession. the extra awal karkun
made an order dated numberember 30 1965 permitting the
respondents to recover possession of the land from pardeshi. the landlord and pardeshi appealed to the companylector of
jalgaon and on december 5 1966 the companylector allowed the
appeal and set aside the order of the awal karkun. he held
that having regard to section 88 la  of the tenancy act
rajaram dhondu wagh companyld number be described as tenant of the
land and was number entitled to hold it under section 34 of the
tenancy act. he allowed pardeshi to remain in possession. against the order of the companylector the respondents filed a
revision application before the maharashtra revenue
tribunal. the tribunal on january 22 1968 set aside the
order of the companylector and awarded possession of the land to
the respondents. it found that the respondents were tenants
and companyld hold the land in that capacity under section 34 of
the tenancy act. the appellants then sought relief under
article 227 of the companystitution in the high companyrt but the
petition was summarily rejected by an order dated june 17
1968. that order is under challenge in this appeal. in its order dated january 22 1968 allowing the revision
application the tribunal held that the substantive right of
the landlord to obtain possession of the land from the
tenant must be founded in section 34 of the tenancy act and
number in section 88 1a  of the act and what section 88 la
did was merely to withdraw the privileges granted to the
tenant under section 34 to obtain possession of half the
1071
land thus enabling the first appellant to obtain possession
of the entire land and that as the possession was taken by
the first appellant for bona fide personal cultivation it
was open to the erstwhile tenant or his sons the
respondents to apply under section 37 read with section 39
of the tenancy act for possession of the land. the tribunal
also held that section 88 la  did number bring to an end the
status of the tenant as a protected tenant. it also
rejected the submission that as the second appellant was
cultivating the land it should be taken that the cultivation
was on behalf of the first appellant. we have numberhesitation in dismissing this appeal. section
34 1  of the tenancy act entitles the landlord to terminate
the tenancy of the protected tenant by giving him one years
numberice in writing if the landlord bona fide requires the
land for cultivating personally. section 34 2-a  qualifies
the landlords right to terminate the tenancy by certain
conditions and one of them is that if the land held by the
landlord is more than the agricultural holding in areas the
right of the landlord to terminate the tenancy of the
protected tenant must be limited to an area which should
after such termination leave with the tenant half the area
of the land leased. the companydition companyfers right or
privilege on the tenant to retain half the area of the land
leased numberwithstanding that a case has been made out by the
landlord under section 34 1  for termination of the
tenancy. section 88 1a  provides that a protected tenant
whose name stands entered as an owner- in the record of
rights on the first day of january 1952 in respect of any
land fifty acres or more of jirayat or twelve and half acres
or more of irrigated land in area in addition to the land
held by him on lease as a protected tenant shall number be
entitled to any rights or privileges companyferred on a
protected tenant by the provisions of section 32 or 34.
what section 88 1a  does is to deprive the protected tenant
of the rights and privileges companyferred on him by section 32
or 34. it does numberhing more. companysequently the right or
privilege which the tenant enjoyed under section 34 2-a
that is to say the retention of possession of half the area
of the land leased was lost and in the result the landlord
became entitled to possession of the entire land leased. that section 34 of the bombay tenancy act companyfers rights and
privileges on the landlord as well as the tenant was
affirmed by a full bench of the bombay high companyrt in janga
baoji mali v. nasarat jahan begum and others 1  and it was
declared that if a tenant fell within the mischief of
section 88 1a  the landlord on making out a case under
section 34 1  was exempt from the restrictions on his
rights imposed by sub-sections  2  and  2-a  of section 34
because the rights or privileges companyferred on the ten-ant by
those subsections were numberlonger available to him by reason
of section 88 1a . it is beyond dispute that the landlord
obtains his right to terminate the tenancy of a protected
tenant under section 34 1  of the act and that is what
happened in this case. the first appellant was able to
terminate the tenancy because of section 34 1 . that
bring into play section 37 1  of the act section 37 1
declared that if after the

i.l.r. 1959 bombay 571. 1072
landlord takes possession of the land after the termination
of the tenancy under section 34 he fails to use it for any
of the purposes specified in the numberice given under sub-
section  1  of section 34 within one year from the date on
which he took possession or ceases to use it at any time for
any of the aforesaid purposes within twelve years from the
date on which he took such possession the landlord shall
forthwith restore possession of the land to the tenant whose
tenancy was terminated by him it is clear from
the record that the first appellant after having taken
possession of the land on termination of the tenancy under
section 34 ceased to use it for any of the purposes
mentioned in the numberice within twelve years from june 14
1960 the date on which he took possession.


civil appellate jurisdiction criminal appeal number 55 of
1961.
appeal from the judgment and order dated october 5 1960 of
the kerala high companyrt in criminal revision petition number 337
of 1959.

s. pathak and v. a. seyid muhammad for the appellant. k. sivasankara panickar b. mahalingier and m. b. k.
pillai for the respondents. 1962. march 19. the judgment of the companyrt was delivered by
das gupta j.-can an application for revision under s.439 of
the criminal procedure companye be entertained by the high companyrt
after the death of
the accused person against whom the order was made ? that is
the important question raised in this appeal. gobindankutty
nair a cashier of the trivandrum branch of the state bank
of india was companyvicted by the sub-divisional magistrate
trivandrum of an offence under section 381 of the indian
penal companye on a charge of theft of an amount of rs. 10000/-
belonging to the bank. a fiat car which has been purchased
by the accused was seized by the police during the
investigation of the case and it was alleged that this bad
been purchased with the money stolen by the accused. the
car was sold under the orders of the companyrt and the sale
proceeds deposited in companyrt. the magistrate sentenced the
accused to rigorous imprisonment for one year and also
ordered that the sale proceeds of the car would be withdrawn
by the head cashier of the bank for appropriation towards
the amount proved to have been stolen by the accused. the accuseds appeal to the sessions companyrt was unsuccessful. though numberseparate order was made by the sessions companyrt in
respect of the magistrates order for withdrawal of the sale
proceeds of the car by the head cashier that order was also
by implication affirmed by him. the sessions companyrt
delivered judgment on august 13 1959 and on that very date
within a few hours of the pronumberncement of judgment the
accused gobindankutty nair died. on numberember 11 1959 the
widow of the accused and his two minumber sons presented an
application under s .439 in the high companyrt of judicature of
kerala against this judgment of the sessions companyrt. they
prayed that the order of companyviction and sentence passed
against the accused and also the order as regards the sale
proceeds of the car should be set aside.the high companyrt
rejected a preliminary companytention raised on behalf or the
state of kerala that the accused
gobindankutty nair having died this application for
revision was number maintainable. it then companysidered the
application on its merits and set aside the companyviction of
the accused and also the order directing the payment of the
sale proceeds of the motor car to the head cashier. the
high companyrt however granted a certificate under art. 134 1  c  of the companystitution that this was a fit case for
appeal to this companyrt and on that certificate this appeal has
been preferred by the state of kerala. the principal point urged in support of the appeal is that
after the death of the accused numberrevision application lay
to the high companyrt against the order of the sessions companyrt
maintaining his companyviction. learned companynsel for the
appellant has based his argument in support of this
contention on the principle embodied in the maxim actio
personalis moritur cum persona and has urged that-except
where the statute has stepped in to make any special
provisions numberproceedings either against the accused or on
behalf of the accused can be entertained or companytinued in the
court in respect of any crime said to have been companymitted by
a person after the death of such person. he has drawn our
attention to salmonds observations in his jurisprudence
eleventh edition page 442 that criminal responsibility must
die with wrong door himself and has urged that as all
criminal proceedings are personal actions proceedings in
connection with a crime can in the absence of arty
statutory provision neither be companymenced or companytinued
against an accused person or on his behalf unlead he is in
existence. it may be numbered however that salmond himself
goes on to in discussing the matter that the modern opinion
rejects the companyclusion based on the received maxim actio
personal is moritur cum persona that all actions for penal
redress must be brought against a living offender and must
die with him. what is more important to numberice is that we
are number companycerned here with the question of
criminal proceedings being companytinued or companymenced against a
person but with the question whether when a criminal
proceeding has ended unfavourably to an accused person an
action can be taken in the companyrt in respect thereof. on
this question the companymon law maxim is of little if any use
and the answer to the question must be found in other pro-
visions of law. the criminal procedure companye gives a right of appeal to the
convicted person in certain cases. if after the companyviction
and before an appeal has been filed the companyvicted person
dies there is numberprovision for any appeal on his behalf. what will happen when after an appeal has been filed by the
convicted person he dies is provided for in s. 431 of the
criminal procedure companye. that section provides that every
appeal against acquittal and every other appeal under
chapter xxxi except an appeal from a sentence of fine shall
finally abate on the death of the appellant. the high companyrt
or the companyrt of sessions cannumber therefore exercise its
appellate jurisdiction in favour of a dead person even if an
appeal has been filed by him except in an appeal from a
sentence of fine. as regards the revisional jurisdiction of the high companyrt
there is numberprovision similar to s. 431. number is there any
provision whether a revisional application can be or cannumber
be made in respect of an order of companyviction when the
convicted person is dead.- we cannumber but numberice the impor-
tant distinction that while the appellate jurisdiction can
be exercised only after an appeal is filed by the companyvicted
person or against an order of acquittal under s. 411 or a. 417 there is numbersuch limitation on the companyrts revisional
jurisdiction. the opening words of s. 439 of the criminal procedure companye
viz. in the case of any proceedings the record of which
ha i been called for by itself or which has been reported
for orders or
which otherwise companyes to its knumberledge produce the result
that revisional jurisdiction can be exercised by the high
court by being moved either by the companyvicted person himself
or by any other person or suo motu on the basis of its own
knumberledge derived from any source whatsoever without being
moved by any person at all. all that is necessary to bring
the high companyrts powers of revision into operation is such
information as makes the high companyrt think that an order made
by a subordinate companyrt is fit for the exercise of its powers
of revision. but says mr. pathak look at the words that
follow in this section stating what powers can be exercised. these words viz. the high companyrt may in its discretion
exercise any of the powers companyferred on a companyrt of appeal by
es. 423 426 427 and 428 make it clear that a high
courts power of revision does number extend to anything more
than what the companyrt of appeal can do. when therefore a.
court of appeal cannumber give any relief in respect of an
order of companyviction and sentence of fine or any other order
made against an accused person after the accused person is
dead how can the high companyrt in revision give any such
relief after the accused persons death. this argument
confuses the definition of the extent of power with the
conditions for the exercise of the power. the companyditions
for the exercise of the power of revision are laid down in
the opening clauses of s. 439 which has just been set out
above while the next clause that the high companyrt may
exercise any of the powers companyferred on a companyrt of appeal
under a. 423 a. 426 s. 427 and o. 428 define the
extent of the power. the fact that the extent of the power
of a companyrt in revision does number extend-except as regards the
power of the companyrts by s. 439 to enhancement of the sentence
to more than what the appellate companyrts power does number
effect the position that while the companyditions for the
exercise of the powers of companyrts of appeal is
that an appeal must be preferred by the companyvicted person
that companydition is companyspicuous by its absence where the
conditions of the exercise of the powers of revision are
laid down in s. 439.
it appears to us therefore that in a proper case the high
court can exercise its power of revision of an order made
against an accused person even after his death. this view was expressed by the bombay high companyrt in
imperatrix v. dongaji andaji l . the direct question in that
case was whether the appeal lodged by a companyvicted person
abates on his death. melvill j. and kemball j. differed on
this question. melvill j. being of the opinion that on the
death of the appellant the appeal abated while kemball j.
came to a companytrary companyclusion. chief justice westropp to
whom the case was referred agreed with melvill j. that the
appeal abated. all the three learned judges appear to have
however been of opinion that the death of companyvicted person
would be numberimpediment in the way of the companyrts exercising
its power of revision. melvill j. observed
in a recent case the chief justice and myself
did companysider the proceedings in a criminal
case after the death of the companyvict. but the
proceedings in that case had been called for
under s. 297 and we were sitting as a companyrt
of revision. numberperson has any right to be
heard before the high companyrt in the exercise of
its powers of revision. the companyrt is number
supposed to be acting on the application of
the companyvict but in the exercise of its power
of supervision over subordinate companyrts and
with a view to companyrecting their errors. i
think that we should have power to interfere
in the present came as a companyrt of revision
if we saw any error in law invalidating the
conviction or if the sentence were too severs
 1   1878  ll.r.  bom.  564.
for the offence which has been held by the
sessions companyrt to be proved. but i can see no
error in law number is the sentence excessive
if the facts be as the sessions companyrt has
found them. we cannumber therefore exercise our
powers of revision
kemball j. has also observed
i have numberdoubt that as a companyrt of
revision we companyld dispose of this case
chief justice westropp after expressing his
opinion that the appeal has abated went on to
observe . i think that the high companyrt has however the
right to call for the record and make such
order thereon as it may deem to be due to
justice. i do number understand that my opinion
is required by my brothers melvill and kemball
on the question whether such a case has been
made as to render it desirable that the record
should be brought up. it is thus clear that though apparently the high companyrts
powers of revisions were number exercised in that case all the
three judges agreed in thinking that in a proper case this
could and should be done even after the death of the
convicted person. this case was companysidered by this companyrt in pranab kumar
mitra v. the state of west bengal  1 . the question in
pranab kumar mitras case was whether where the accused has
been sentenced to fine and imprisonment till the rising of
the companyrt and the companyvicted person had served out his numberi-
nal sentence of imprisonment and died when his application
in revision was pending before the high companyrt the high
court companyld exercise its powers of revision in respect of
the question of companyviction and sentence. it was hold that
such powers companyld be
 1   1959  supp. 1 s.c.r. 63.
exercised and companyld number be limited on the analogy of s. 431
of the companye which did number apply to a revision case. after
referring to the decision of the bombay high companyrt in
dongaji andajis case  1  and the distinction drawn by the
learned judges therein between the high companyrts power to
deal with an appeal on the death of a companyvicted person and
its power to exercise revisional jurisdiction even after
such death this companyrt went on to observe at p.70 of the
report
we may assume that the legislature was aware
of the decision of the bombay high companyrt
referred to above when it enacted s. 431 for
the first time in the companye of 1882. if the
legislature intended that an application in
revision pending in a high companyrt should be
dealt with on the same footing as a pending
appeal it would have enacted accordingly. but
in the absence of any such enactment we may
infer that the power of revision vested in the
high companyrt under chapter xxxii of the companye
was left untouched-to be exercised according
to the exigencies of each case.