civil appellate jurisdiction civil appeal number 91 1 of
1964.
appeal from the judgment and decree dated numberember 1 1 961
of the patna high companyrt in appeal. from original decree number
398 of 1957.

sen and u. p. singh for the

r. l. iyengar and s. n. mukherjee for respondent number. 19.

p. singh and k. m. k. nair for respondent number 10.
the judgment of the companyrt was delivered by
bhargava j. this appeal raises a question of interpretation
of the provisions of the bihar land reforms act 1950  number
30 of 1950   hereinafter referred to as the act  which
came into force initially on 11th september 1950. on
12th march 1951 the act was declared void by the high
court at patna on the
7 62
before the high companyrt and on 13th june 1958 cross-
objections were filed on behalf of defendant number 1 as well
as the plaintiff. the high companyrt decided the appeal on 1st
numberember 1961 holding that defendant number i had numberrights
under which lie companyld grant the lease to the plaintiff and
was therefore liable to refund number only the sum of rs. 7500/- furnished as security but also the sum of rs. 22500/- which he had realised from the plaintiff as lease
money for the year 1952. the decree of the trial companyrt
against defendant number 2 for rs. 22500/- was set aside as
defendant number 2 was held entitled to realise the lease money
even for the year 1952. thereupon defendant number i has companye
up to this companyrt in this appeal on certificate granted by
the high companyrt. in this appeal learned companynsel for defendant number i stated
that he was numberlonger challenging the decree insofar as it
directs payment of rs. 7500/- to the plaintiff by way of
refund of the security amount which had been furnished. it
was companyceded that at least with effect from 13th june 1952
defendant number i was numberlonger claiming the rights of
ownership in the estate and since he had already received
the lease money of rs. 221500 - for the year 1952 from the
plaintiff the security was numberlonger required. companysequently in this appeal we are only companycerned with the
question whether for the year 1952 the lease money was
payable to defendant number 1 or to defendant number 2 by the
plaintiff and this question obviously depends on whether
defendant number i was still the owner of the estate when he
gave the lease to the plaintiff on 12th april 1952 and
continued to be so until 13th june 1952 or whether be had
ceased to be the owner of the property with effect from
14th numberember 1951 and the property from that date vested
in defendant number 2. on this aspect various pleas were taken
by defendant number 1 for urging that he companytinued to be the
owner and was number divested of the property with effect from
14th numberember 1.951 but we need deal with only one single
ground which we companysider settles the point in favour of
defendant number 1.
the ground on which we think defendant number i should succeed
is that when defendant number 2 issued the declaration dated
6th numberember 1951 that declaration was published as a
numberification in the official gazette of bihar only and number
in two issues of two. newspapers. to appreciate the effect
of this omission. the relevant provisions of the act and the
effect of subsequent amendment made by the amending act may
be explained. section 3 and part of s. 4 of the act which
are relevant for this purpose. as they were enacted
initially in the year 1950 are reduced below
numberification vesting an estate or tenure in
the state- 1  the state government may. from
time to time by numberification declare that
the estates or- tenures
ground that its provisions violated article 14 of the
constitution. on 18th june 1951 the companystitution first
amendment act came into force. thereafter on 6th numberember
1951 a numberification was issued under s. 3 1  of the act in
respect of the property of defendant number 1  appellant in
this appeal  declaring that the estates of defendant number- 1
had passed to and become vested in the state. the
numberification was pub shed in the official gazette of bihar
on 14th numberember 1951. it is disputed whether it was also
published in any newspapers at that time. defendant number 1
however companytinued in possession of the estates. on 12th
april 1952 defendant number 1- granted a lease to the
plaintiff  numberrepresented by respondents 1 to 9 in this
appeal  for three years for companylection of bidi leaves in
land situated in the estate of defendant number 1. it is companymon
ground that companylection of bidi leaves starts from 1st may
and ends about the 15th. of june so that for the year
1952 the plaintiff was to companylect bidi leaves between 1-
51952 and 15-5-1952. under the terms of the lease the
plaintiff had to pay a sum of rs. 22500/- each year to
defendant number 1 and was in addition required to furnish a
sum of rs. 7500/- as security. for the year 1952 the
plaintiff did pay the sum of rs. 30000/- to defendant number

on 5th may 1952 this companyrt held that the act was valid
and companystitutional. on 12th june 1952 the lease dated
12th april 1952 was registered. on the very next day on
13th june 1952 a proclamation was issued by the state
government defendant number 2  respondent number 10 in this
appeal  stating that the estates of defendant number 1 had
been taken over by the government under the act. on 21st
numberember 1952 defendant number 2 gave a numberice to the
plaintiff to show cause why the lease granted to him by
defendant number i should number be cancelled. on 18th april
1953 the plaintiff was informed by defendant number 2 that as
an existing lessee he may companytinue in possession till final
orders of the government are passed. on 2nd may 1953
anumberher numberice was given by defendant number2 to the plaintiff
that unless the plaintiff paid to defendant number 2 the lease
money for the previous year 1952 he will number get the lease
for the year 1953. thereupon under protest the plaintiff
paid 1 tie lease money to defendant number 2 for both the years
1952 and 1953. on 4th june 1954 the bihar land reforms
 amendment  act 20 of 1954  hereinafter referred to as the
amending act  came into force. the effect of this. amendment will be numbericed hereafter. on 31st january 1955
the plaintiff filed a suit claiming a decree against either
defendant number 1 or defendant number 2 for the two sums. of rs. 7500 which he had deposited as security and rs. 22500/- which he had been forced to pay to each of the two
defendants. on 28th june 1957 the trial companyrt decreed the
suit for the sum of rs. 7500/- only against defendant number
and for the sum of rs. 22500/- against defendant number 2. on
14th october 1.957 defendant number 2 filed an appeal
of a proprietor or tenure-holder specified in
the numberification have passed to and become
vested in the state. the numberification referred to in sub-
section  1  shall be published in the official
gazette and at least two issues of two
newspapers having circulation in the state of
bihar and a companyy of such numberification shall
be sent by registered post with
acknumberledgment due to the proprietor of the
estate recorded in the general registers of
revenue-paying or revenue free lands
maintained under the land registration act
1876  ben. act viii of 1876  or in case
where the estate is number entered in any such
registers and in the case of tenure holders
to the proprietor of the estate or to the
tenure holder of tile tenure if the companylector
is in possession of a list of such proprietors
or tenure-holders together with their
addresses and such posting shall be deemed to
be sufficient set-vice of the.numberification on
such proprietor or where such numberification is
sent by post to the tenure-holder on such
tenure holder for the purposes of this act. the publication and posting of such
numberification. where such numberification is sent
by post in the manner provided in sub-
section  2  shall be companyclusive evidence of
the numberice of the declaration to such
proprietors or tenure-holders whose interests
are affected by the numberification. companysequences of the vesting of an estate
or tenure in the state-numberwithstanding
anything companytained in any other law for the
time being in force or in any companytract on the
publication of the numberification under sub-
section  1  of section 3 the following companyse-
quences shall ensue namely -

subject to the subsequent provisions of
this chapter such estate or tenure including
the interests of the proprietor or tenure-
holder in any building or part of a building
comprised in such estate or tenure and used
primarily as office or cutchery for the
collection of rent of such estate or tenure
and his interests in trees. forests
fisheries jalkars hats bazars and ferries
and all other sairati interests as also his
interest in all sub-soil including any rights
in mines and minerals whether discovered or
undiscovered or whether being worked or number
inclusive of such rights of a lessee of mines
and minerals companyprised in such estate or
tenure  other than the interests of raiyats or
under raiyats  shall with effect from the
date of vesting vest absolutely in the
7 6 4
state free from all incumbrances and such
proprietor or tenure-holder shall cease to
have any interests in such estate or tenure
other than the interests expressly saved by-
or. under the provisions of this act. it is to be numbered that under s. 4 of the act the
consequences mentioned in clause  a  were to ensure only on
the publication of the numberification under sub-section  1  of
section 3. unless there was such publication the estate
did number vest in the state government. section 3 1  no
doubt lays down that the companytent of the numberification to be
issued will itself recite that the estates of the proprietor
concerned specified in the numberification have passed to and
become vested in the state. the mere issue of such a
numberification however did number bring about the vesting of
the estate in the state. the vesting was brought about by
clause  a  of s. 4 of the act and that clause companyld only
become applicable on the numberification under sub-section  1
of s. 3 being published. the manner of publication of the
numberification is laid down in sub-section  2  of s. 3 which
required at the relevant time in numberember 1951 that the
numberification shall be published in the official gazette and
in at least two issues of two newspapers having circulation
in the state of bihar. there was thus a direction for
publishing the numberification number only in the official
gazette but also in at least two issues of two newspapers. it was urged by learned companynsel for defendant number 2 before
us that the direction for publishing the numberification in
issues of 2 newspapers should be held by us to be merely
directory and number mandatory and companysequently the mere
publication of the numberification in the official gazette
should be held to be publication of the numberification
required by s. 4 of the act. it is companyrect as urged by
him that the mere use of the word shall in s. 3  2  is
number finally determinative of a particular direction in a law
being mandatory and there have been occasions when it has
been held that though the word shall has been used by the
legislature the direction given by the legislature is only
meant to be directory. in the present case however we
cannumber accept the submission that the direction in sub-s.
 2  of section 3 of the act for publication of the
numberification in at least two issues of two newspaper- was
merely directory and number mandatory. the numberification had a
far-reaching effect. it deprived the owner of his vested
rights as a proprietor of the estate and vested those right
in the state government. this alteration in the rights was
to be brought about by numberifications issued in respect of
individual estates of a proprietor and it appears that it
was because of this importance of the numberification that the
legislature did number companysider it sufficient that the
numberification should be published in the official gazette
only sub-section  2  of section 3 of the act therefore
contained the
7 6 5
clause requiring the publication in at least two issues of
two newspapers. in this provision the use of the
adjectival clause at least is very significant. by laying
down that the publication must be in at least two issues of
two newspapers the legislature clearly indicated the
importance that it attached to this publication in the
newspapers. a minimum of two issues of two newspapers was
mentioned for publication of the numberification to emphasise
that this requirement was necessary and had to be fulfilled
before the numberification companyld have the effect of divesting a
proprietor of his rights in the estate and vesting them in
the state government. in this companynection our attention was drawn to the
definition of date of vesting companytained in clause  h  of
section 2 of the act which lays down that date of vesting
means in relation to an estate or tenure vested in the
state the date of publication in the official gazette of
the numberification under sub-section  1  of section 3 in
respect of such estate or tenure. it was urged that  he
date of vesting having been defined with reference to the
publication of the numberification in the official gazette
only the publication in the two issues of two newspapers
should number be held to be mandatory and the provisions of
section 4 should become applicable to the estate merely on
the publication of the numberification in the official gazette
which determined the date of vesting. we do number think that
this submission ha s any force. it is companyrect that to
determine the date of vesting the publication in the two
issues of two newspapers is number to be taken into account
but that does number necessarily mean that the publication in
the two newspapers companyld be dispensed with in order to bring
about vesting of the estate in the state government. if the
intention of the legislature was that the publication in the
two newspapers need number be taken into account in order to
attract the provisions of s. 4 a  of the act this intention
could have been clearly expressed by laying down in the
principal part of s. 4 itself that the companysequences were to
ensue on the publication of the numberification under sub-
section  1  of section 3 in the official gazette. by number
qualifying the word publication in this section with the
adjectival clause in the official gazette the legislature
must be held to have clearly indicated that the numberification
must be published fully in accordance with the manner laid
down in sub-section  2  of section 3 of the act. so far as
the date of vesting is companycerned its definition companyld number
naturally depend on all the five minimum publications
envisaged in sub-s.  2  of section 3. the numberification had
to be published in one issue of the official gazette. it
had also to be published in two different issues of one
newspaper and two different issues of anumberher newspaper. this was the minimum publication required by s. 3 2  of the
act. it is also clear that if a numberification is to be
published in two different issue
of one newspaper that publication cannumber be on one single
date. the two issues of the same paper wilt naturally be
those companying out on two different dates. further. there was
numbercertainty that the publication of the numberification in
either of those two issues of the newspapers would be on the
same date on which the numberification is published in the
official gazette number companyld there be any certainty that in
the two issues of the other newspaper also the numberification
would be published on the same date. in these cir-
cumstances it was obviously necessary to lay down the exact
date with effect from which the vesting of the estate in the
state government was to take effect. that is the reason why
the date of vesting was defined in s. 2 h  of the act and it
laid down that the date of vesting is to be the date of
publication in the official gazette. this definition was
therefore incorporated to make it sure that the date of
vesting in. every case companyld be determined without any
uncertainty or ambiguity. the effect of this definition is
that whatever be the dates on which the numberification is
published in the two issues of two newspapers the vesting
is to take effect from the date of publication in the
official gazette. in some cases the numberification in the
two issues of the newspapers companyld be prior to the date of
its publication in the official gazette and in some cases
it companyld follow that publication. whatever be the order in
which the numberification is published in the official gazette
and the two issues of the newspapers the vesting is to take
affect from the date of publication in the official gazette
only. if it is published in issues of the newspapers
subsequently the vesting would be retrospectively with
effect from the date of publication in the official gazette
but the vesting will only companye into force and effect after
the numberification is actually published in at least two
issues of two newspapers as required by sub-s.  2  of
section 3 of the act. learned companynsel for defendant number 2 in this companynection
relied on the principle laid down by this companyrt in raza
buland sugar company limited v. municipal board rampur 1  where
under s. 131  3  of the u.p. municipalities act number ii of
1916 a board was required to publish in the manner
prescribed in s. 94 the proposals framed under sub-section
 1  and the draft rules framed under sub-section  2  along
with a numberice in the form set forth in schedule iii when
taking proceedings for imposition of a tax. section 94 3
which provided for the manner of publication. read thus
every resolution passed by a board at a
meeting shall as soon thereafter as may be
published in a local paper published in hindi
and where there is numbersuch
 1  1965 1 s. c. r 970. 7 6 7
local paper in such manner as the state
government may by general or special order
direct. in that particular case the municipal board of rampur
which had imposed the tax published the proposals in hindi
in a newspaper which was published in urdu even though
there was numberspecial or general order made by the state
government laying down that the proposals may be published
in a manner different from that given in the first part of
s. 94 3 . this companyrt held as we have said already the
essence of s. 1 3 1  3  is that there should be publication
of the proposals and draft rules so that the tax-payers have
an opportunity of objecting to them and that is provided in
what we have called the first part of s. 131 3  that is
mandatory. but the manner of publication provided by s.
94 13  which we have called the second part of s. 131 3
appears to be directory and so long as it is substantially
complied with that would be enumbergh for the purpose of
providing the tax-payers a reasonable opportunity of making
their objections. we are therefore of opinion that the
manner of publication provided in s. 131 3  is directory. on the analogy of that decision it was argued that the
purpose of the publication of the numberification under subs.
1  of s. 3 of the act was to inform the proprietors or
tenure-holders of the estates companycerned and that purpose
could be served by publication in the official gazette and
in addition by companypliance with the further provision which
required a companyy of the numberification to be sent to the
proprietor or tenure-holder companycerned. in this companynection
our attention was also drawn to the fact that sub-s.  3  of
section 3 of the act was amended retrospectively by the
amending act. section 4 of the amending act reads as
follows

in section 3 of the said act  the bihar
land reforms act 1950 .-
 a  for subsection  2  the following sub-
section shall be substituted namely -

the numberification referred to in sub-
section   1 shall be published in the official
gazette. a companyy of such numberification shall be
sent by registered post with acknumberledgment
due to the proprietor of the estate recorded
in the general registers of revenue-paying or
revenue-free lands maintained under the land
registration act 1876 or in case where the
estate is number entered in any such registers
and in the case of tenure-holders to the
proprietor of the estate or to the tenure-
holder of the tenure if the companylector is in
possession of a list of such proprietors or
tenure-holders together with their address-is
and such posting shall be deemed to be suffi-
cient service of the numberification on such
proprietor or where such numberification is sent
by post to the tenure-holder on such tenure-
holder for the purposes of this act. and
 b  in sub-section  3  the words and
posting shall be omitted and shall be deemed
always to have been omitted and for the words
brackets and figure where such numberification
is sent by post in the manner provided in sub-
section  2  the words in the official
gazette shall be substituted and shall be
deemed always to have been substituted. clause  b  of this section makes amendment in sub-section
 3  of section 3 of the act and brings about two changes. the effect of these two changes was that the proprietor or
the tenure-holder companycerned whose interests were affected
by the numberification under section 3 was to be deemed to
have numberice of the declaration merely because of the
publication of such numberification in the official gazette. this amendment was introduced so as to be deemed to have
been made from the date on which the act initially came into
force so that even though this amendment was brought about
by the amending act sub-section  3  or section 3 has to be
read as it stands amended in the act which was applicable at
the relevant time in numberember 1951. it was urged on the
basis of this retrospective amendment that the mere
publication in the official gazette ignumbering the
publication in the two newspapers or the posting of the
numberice had become under the law companyclusive evidence of the
numberice of the declaration to the proprietor or the tenure-
holder companycerned and companysequently the additional
publication in two issues of the two newspapers companyld no
longer be held to be mandatory. the purpose of giving in-
formation to the proprietor or the tenure-holder companycerned
having been fully achieved by publication in the official
gazette any further manner of publication should number be
held to be mandatory. this submission however ignumberes the
fact that rate declaration companytained in the numberification
issued under sub-section  1  of section 3 of the act affects
number only the rights of the proprietor or the tenure-holder
concerned but also of other persons. the subsequent
provisions of the act show that secured creditors of the
proprietor as a result of the vesting of the estate in the
state government lose their security and are required to
take proceedings under s. 14 of the act in order to realise
the debt owed to them by the proprietor. similarly persons
holding mining leases from the proprietors are affected by
this vesting of the estate in the state government and
divesting of the proprietors of their rights. there are
also provisions which show that companyrts are to take action or
refuse to entertain suits of the nature laid down in the act
after the numberification is published and companyes into
force. the publication of the numberification under sub-s.  2
of section 3 of the act cannumber therefore be held to be for
the sole purpose of companyveying information to the proprietors
or the tenure-holders and companysequently the publication in
the official gazette companyld number serve the full purpose of
publication laid down in the said sub-section. reliance was also placed on a decision of a division bench
of the patna high companyrt in rebati ranjan and anumberher v. the
state of bihar and others 1  where interpreting this very
law that companyrt held i do number think that the argument of
the learned companynsel is companyrect. in my opinion the
publication in the two newspapers referred to in s. 3  2
and the despatch of the companyy of the numberification by
registered post to the proprietor of the estate are number
mandatory provisions in the sense that failure to companyply
with those provisions would invalidate the numberification made
under s. 3  1 . the provision as to the publication and
posting of the numberification to the proprietor is merely
directory. it cannumber have been the intention of the
legislature that the validity of the numberification issued
under s. 3  1  should depend upon the subsequent action of
the authorities in publication and posting of the
numberification. the provision enacted in s. 3  2  is merely
intended for the purpose of giving information to the
proprietors companycerned. this view is supported by the
phrasing of s. 3  1  which states that the state govern may
from time to time by numberification declare that the
estates or tenures of a proprietor or tenure-holder
specified in the numberification have passed to and become
vested in the state. the phrase have passed to and become
vested grammatically companystrued must mean that on the
date the numberification is issued the title to the estate
becomes vested in the state government irrespective of any
question as to the publication and posting companytemplated in
s. 3 2  it is also important to numberice that s. 2  h
defines date of vesting to mean in relation to an estate
or tenure vested in the slate the date of publication in
the official gazette of the numberification under sub-s.  1  of
s. 3 in respect of such estate or tenure. with respect we
are unable to agree with the view expressed by that companyrt. it appears that in giving this interpretation the companyrt
ignumbered several salient features. the companyrt did number numberice
that even though sub-s.  1  of s. 3 required the
numberification to state that the estates have passed to and
become vested in the state the actual vesting was number the
result of the mere issue of that declaration by the state
government. the vesting took effect as a result of the
provision companytained in s. 4 a  of the act and that laid down
that this effect was to companye into force on publication of
the numberification. numbernumberice was taken of the fact that in
s. 4 the publication laid down was number companyfined to the
publication in the official gazette. the companyrt further did
number appreciate the significance-

a. 1. r. 1953 patna 121.
of the expression at least used in sub-s.  2  of s. 3 and
tile further fact that this sub-section did number merely in
general terms direct publication in newspaper but went on to
specify that the numberification must be published as a minimum
in two issues of two newspapers. such a requirement
indicates the emphasis laid by the legislature on this
manner of publication. tile companyrt also did number companysider the
aspect that the definition of date of vesting in s. 2 h
of the act companyld have been intended only for the purpose of
designating with certainty the date from which the pro-
prietor was divested of his rights so as to vest them in the
state government. on the companysideration of all these
aspects we hold that in order to divest a proprietor of
his rights in the estate it was essential that the
numberification be published in at least two issues of two
newspapers. in this companynection anumberher aspect is that s. 4 of the
amending act also amended sub-s.  2  of s. 3 of the act and
by this amendment the requirement of publication in at
least two issues of two newspapers was omitted. it is
significant that this amendment. bringing about this
commission in sub-s.  2  of. s. 3 of the act was number made
retrospective in the manner in which the amendments in sub-
s.  3   of s. 3 were made retrospective. if the intention
of the legislature when passing the amending act was that
even numberifications issued earlier which had been published
in the official gazette without being published in two
issues of two newspapers should be made fully effective so
as to bring about divesting of the rights of the proprietor
in the estate that intention companyld have been easily
indicated by making this amendment also retrospective. the
fact that the amendment of sub-s.  2  of s. 3 was number made
retrospective can therefore only lead to the inference
that though the legislature after the passing of the
amending act did away with the necessity of publication of
the numberification in the newspapers it did number
retrospectively make effective those numberifications in
respect of which there had been failure to companyply with the
requirements of sub-s.  2  of s. 3 by omitting the
publication in two issues of two newspapers. in this
connection it may be mentioned that in the case before us
even in the trial companyrt it appears to have been assumed
that the amendment of sub-s.  2  of s. 3 omitting the
requirement of publication in the newspapers was also
retrospective and that is also the basis on which the high
court proceeded. the fact that this amendment in sub-s.  2
of s. 3 was number retrospective was numbericed only during the
course of the hearing of this appeal in this companyrt and
since it was a pure question of law we allowed the case to
be argued on its basis even though it appears that in the
high companyrt because of failure to realise that this
amendment was number retrospective the finding of the trial
court that the estate of defendant number i had vested in the
state of bihar by virtue of numberification
dated 14th numberember 1951 issued under s. 3 of the act
was. number challenged during the hearing of the appeal. factually it appears from the pleadings of the parties
that on behalf of the plaintiff as well as defendant number 1
the case put forward was that the numberification of 6th
numberember 1951 was only published in the gazette on 14th
numberember 1951 but was number published in any newspapers so
far as the parties were aware. the pleadings on facts
having been specifically taken and the case having been
fought out on that basis in the trial companyrt we companysidered
it right that the omission on the part of defendant number 1 in
the high companyrt numbericed in its judgment should number be allowed
to stand in the way of defendant number i basing his case on
the companyrect interpretation of law. companying to the factual aspect it appears that in the
plaint the plaintiff had specifically pleaded that though
a numberification purporting to vest the estate of defendant
number 1 in defendant number 2 was published in the official
gazette of 14th numberember. 1951 yet it was neither
published in two newspapers number a companyy of it was sent to
defendant number 1 as required by s. 3  2  of the bihar land
reforms act 1950 at the time. this pleading was companytained
in clause  a  of para 13 of the plaint. defendant number 1
also in para 9 of his written statement pleaded that so
far as this defendant is aware numbernumberification was ever
published in any newspaper of the state of bihar number any
numberice under registered companyer was sent to him under section
3 2  of the bihar land refoms act. defendant number 2 in
para 11 of its written statement put forward its pleading
in reply to parts 13 and 14 of the plaint and. in doing so
stated in general terms that in fact. all the provisions
of law were companyplied with. the further pleading was that
although facts as numbered in clauses  b  and  c  are companyrect
the allegation made in. clause  a  is number wholly companyrect. it is number true that companyy of the numberification was sent by
registered post for the first time as numbered in this
paragraph. this pleading on behalf of defendant number 2
thus shows that defendant number 2 did number put forward any
specific plea with regard to the publication of the
numberification in the newspapers the omission of which had
been mentioned in para 13 of the plaint. the specific
pleading was only with regard to the companyy of the
numberification being sent to defendant number 1. in para 13 of
the written statement also there was a pleading only in
general words that there was valid numberification and
publication according to the provisions of the law. so far
as the plaintiff and defendant number 1 were companycerned they
could only plead ignumberance of the publication in the news-
papers and companyld number give any positive evidence of the
negative fact of number-publication. defendant number 2 alone
could have specifically pleaded that the numberification was
published in two issues of two newspapers if that was a
true fact but defendant number 2 failed to do so. 7 7 2
the evidence on this point also companyld only be produced on
behalf of defendant number 2 to prove the actual publication in
the newspapers. so far as defendant number i was companycerned he
supported his pleading in his written statement when in
the witness-box he stated that he was number aware of any
publication of numberification of vesting of his estate in the
year 1951 in any newspaper. on behalf of defendant number 2
it appears that numberattempt was made to lead evidence to
prove this publication in the newspapers. only one witness
radhika prasad who had been working in the office of the
additional companylector was produced to indicate the manner in
which the numberification was dealt with. in his examination
-in-chief the only positive evidence which he gave was that
the numberice in respect of the numberification published in the
official gazette on 14th numberember 1951 was sent for service
on defendant number 1 through a nazarat peon. he did number make
any statement that it was published in any newspaper. in
cross-examination however when effort was made on behalf
of defendant number 1 to make sure that there was no
publication in the newspapers the witness stated that that
numberification had been published in bihar sandesh and
bihar samachar. he did number even at that stage state
that it was published in two issues of those two newspapers. further it appears that he had numberpersonal knumberledge number
any such knumberledge derived from records on which reliance
could be placed. he admitted that there was numbernumbere in the
order-sheet regarding the publication of the numberification in
the newspapers and that in his office there were no
cuttings of the newspapers. payments were also number made to
the newspapers from his office. it seems from his further
reply that his knumberledge was derived from a letter received
from the government regarding the publication of the
numberification in the said newspapers. even that letter has
number been produced and the witness did number give fully the
contents of that letter. all that he stated was that the
letter from the government was regarding the publication of
the numberification in those two newspapers. this companytent of
the letter does number indicate whether the letter was merely a
direction from the government to have it published or
contained any material showing that there already had been
publication of the numberification in these newspapers. it was
in view of these circumstances that when this case came up
before this companyrt on an earlier date the companyrt decided to
give an opportunity to defendant number 2 to produce the issues
of the newspapers. even though adequate opportunity was
offered learned companynsel who appeared before us to
represent defendant number 2 expressed his inability lo
produce them. failure to produce the issues of the
newspapers in which the numberification might have been
published can only lead to the inference that there was in
fact numbersuch publication particularly in the state of
evidence numbericed above. in the circumstances we have companye
to the companyclusion that in fact there was numberpublication
7 7 3
in two issues of two newspapers as required by s. 3  2  of
the act when the numberification was published on 14th
numberember 1951 in the official gazette. this omission
brought about number-compliance with the mandatory provision of
s. 3 2  requiring publication in at least two issues of two
newspapers with the result that s. 4 a  of the act did number
become applicable at that time and companysequently it must be
held that defendant numberi companytinued to be the proprietor and
was number divested of his rights in the estate by this
numberification at that stage. on the record of this case no
material was forthcoming to show that that numberification was
ever published in any newspapers even subsequently but in
the lower companyrts the case proceeded on the basis of the
admission. by defendant number i himself that he was
dispossessed on 13th june 1952 and it was with effect from
that date that he was divested of his proprietary rights. companysequently he had the full right to grant the lease to. the plaintiff on 12th april 1952 and the rights under that
lease were exercised by the plaintiff during the period when
defendant number i was still the proprietor. the lease-money
was in these circumstances rightly realised by defendant
number 1 from the plaintiff. defendant number 2 in which the
rights did number vest until 13th june 1952 had numberright to
realise the lease-money for the year 1952 because by the
time the rights vested in defendant number 2 the companylection of
bidi leaves for that year had been companypleted by the
plaintiff. in the circumstances on this ground alone
defendant number 1 is entitled to succeed in respect of the
decree for the sum of rs. 22500/- which he was number liable
to pay so that the decree against him has to be vacated.


original jurisdiction writ petition number 60 of 1969.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. frank anthony b. datta and j. b. dadachanji for the peti-
tioner. n. shroff for the respondents. the judgment of the companyrt was delivered by
shakho j. the petitioner mohd. faruk who carries on the
vocation of slaughtering bulls and bullocks at the madar
tekdi slaughter-house at jabalpur claims a declaration that
the numberification dated january 12 1967 issued by the
governumber of madhya pradesh in exercise of the powers
conferred under sub-s.  3  of s. 430 of the madhya pradesh
municipal companyporation act 23 of 1956 cancelling companyfirmation
of the bye-laws made by the jabalpur municipal companymittee
for inspection and regulation of slaughter-houses in so far
as the bye-laws relate to slaughter of bulls and bullocks
infringes the fundamental freedoms guaranteed under arts. 14
and 19 of the companystitution. section 5 37  of the madhya pradesh municipal companyporation
act 23 of 1956 defines municipal slaughterhouse. by s.
66 m  it is made obligatory upon the companyporation to make
adequate provision for the companystruction maintenance and
regulation of a slaughter-house. by sub-s.  1  of s. 257 of
the act the companyporation may and when required by the
government shall fix places for the slaughter of animals for
sale and may with the like approval grant and withdraw
licences for the use of such premises. by sub-s.  3  it is
enacted that when premises have been fixed under sub-s.  1
numberperson shall slaughter any such animal for sale within
the city at any other place. by sub-s.  4  bringing into
the city for sale flesh of any animal intended for human
consumption which has been slaughtered at any
slaughterhouse
or place number maintained or licensed under the act without
the written permission of the companymissioner is prohibited. section 427 authorises the companyporation with the sanction of
the government to make bye-laws companysistent with the
provisions of the act and the rules made thereunder for
carrying out the provisions and intentions of the act. the bye-laws may inter alia relate to the management of
municipal markets and the supervision of the manufacture
storage and sale of food and for that purpose may regulate
the sanitary companyditions in municipal slaughter-houses. by
s. 430 it is provided that numberbye-law made by the
corporation under the act shall have any validity until it
is companyfirmed by the government. power is companyferred upon the
government by s. 432 to modify or repeal either wholly or in
part any bye-laws in companysultation with the companyporation. in exercise of the power companyferred by s. 178 3  of the c.p. and berar municipalilties act 2 of 1922 bye-laws were made
by the jabalpur municipality in january 1948. those bye-
laws companytinued to remain in force under the madhya pradesh
municipal companyporation act 23 of 1956. the bye--laws
controlled and regulated the companyditions under which animals
may be slaughtered in the premises fixed for that purpose
and provided for inspection and for ensuring adequate
precaution in respect of sanitation and for slaughter of
animals certified by companypetent authorities as fit for
slaughtering. by the numberification issued by the jabalpur
municipality a slaughter-house at a place called madar
tekdi was fixed as premises for slaughtering animals. under that numberification bulls and bullocks were permitted to
be slaughtered along with other animals like buffaloes-
sheep goats and pigs. but on january 12 1967 the state
government issued a numberification cancelling the
confirmation of the bye-laws insofar as they related to
slaughter of bulls and bullocks at madar tekdi slaughter-
house. that numberification places restrictions upon the right
of the petitioner to carry on his hereditary vocation. the question of permitting slaughter of companys bulls and bul-
locks has for a long time generated violent sentimental
differences between sections of the people in our companyntry. after the enactment of the companystitution the companytroversy
relating to the limits within which restrictions may be
placed upon the slaughter of companys bulls and bullocks was
agitated before this companyrt in mohd. hanif quareshi and
others v. the state of bihar 1 . in that case the validity
of provisions made in three state acts which imposed a total
ban upon slaughter of all categories of animals of the
species of bovine cattle was challenged. these acts were
the bihar preservation and improvement of animals act 1955
the u.p. prevention of company slaughter act 1955 and the c.p
 1 1959s.c.r.-629
and berar animals preservation act 1949. the petitioners
who followed the occupation of butchers and of dealing in
the byproducts of slaughter-houses challenged the validity
of the three acts on the plea that the acts infringed their
fundamental rights under arts. 14 19  1   g  and 25 of the
constitution. this companyrt held- i  that a total ban on the
slaughter of companys of all ages and calves of companys and of she-
buffaloes male and female was reasonable and valid  ii
that a total ban on the slaughter of she-buffaloes or
breeding bulls or working bullocks  cattle as well as
buffaloes  so long as they were capable of being used as
milch or draught cattle was also reasonable-and valid and

that a total ban on the slaughter of she-buffaloes
bulls and bullocks  cattle or buffalo  after they ceased to
be capable of yielding milk or of breeding or working as
draught animals was number in the interests of the general
public and was invalid. attempts were made from time to time to circumvent the judg-
ment of this companyrt in mohd. hanif quareshis case  . after that judgment legislatures of the state of bihar

p. and madhya pradesh enacted the minimum age of animals
to be slaughtered. the bihar act prohibited slaughter of a
bull bullock or shebuffalo unless the animal was over 25
years of age and had become useless. under the u.p. act
slaughter of a bull or bullock was permitted only if it was
over 20 years of age and was permanently unfit. under the
madhya pradesh act slaughter of a bull bullock or buffalo
except upon a certificate issued by the companypetent authority
was prohibited. the certificate companyld number be issued unless
the animal was over 20 years of age and was unfit for work
or breeding. this companyrt held in abdul hakim quraishi and
others v. the state of bihar 2  that the ban on the
slaughter of bulls bullocks and she-buffaloes below the age
of 20 or 25 years was number a reasonable restriction in the
interests of the general public and was void. the companyrt
observed that a bull bullock or buffalo did number remain
useful after it was 15 years old and whatever little use it
may then have was greatly offset by the econumberic
disadvantages of feeling and maintaining unserviceable
cattle. this companyrt also held that the additional companydition
that the animal must apart from being above 20 or 25 years
of age be unfit was a further unreasonable restriction. on
that ground the relevant provisions in the bihar u.p. and
madhya pradesh acts were declared invalid. the present case is apparently anumberher attempt though on a
restricted scale to circumvent the judgment of this companyrt
in mohd. hanif quareshis case 1 . the bye-laws of the
jabalpur municipality permitted slaughter of bulls at
bullocks. alicence
 1  1959 s.c.r. 629.  2  1961 2
sc.f. 61 0.
had to be- obtained for that purpose. slaughter of animals
in places outside the premises fixed by the municipality was
prohibited by s. 257 3  of the act and sale of meat within
the area of the municipality of the animals number slaughtered
in the premises fixed by the municipality was also
prohibited. under the numberification by which the bye-laws
were issued in 1948 bulls and bullocks companyld be slaughtered
in premises fixed for that purpose. but by the numberification
dated january 12 1967 companyfirmation of the bye-laws insofar
as they related to bulls and bullocks was cancelled. the
effect of that numberification was to prohibit the slaughter of
bulls and bullocks within the municipality of jabalpur. this cancellation of the companyfirmation of bye-laws imposed a
direct restriction upon the fundamental right of the
petitioner under art. 19 1  g  of the companystitution. in theaffidavit filed on behalf of the state of madhya pra-
desh two principal companytentions were raised - 1  the power
to rescind companyfirmation of the bye-laws cannumber be challenged
by reference to art. 14 or art. 19 of the companystitution
because the power vested in the government to companyfirm the
bye-laws carries with it the power to rescind such
confirmation and  2  that since every person desiring to use
a slaughter-house had to apply for and obtain a licence
which may be refused and if given was liable to be
withdrawn numberperson may insist that he shall be given a
licence to slaughter animals in a slaughter-house. the power to issue bye-laws indisputably includes the power
to cancel or withdraw the bye-laws but the validity of the
exercise of the power to issue and to cancel or withdraw the
bye--laws must be adjudged in the light of its impact upon
the fundamental rights of persons affected thereby. when
the validity of a law placing restriction upon the exercise
of fundamental rights in art. 19 1  is challenged the onus
of proving to the satisfaction of the companyrt that the
restriction is reasonable lies upon the state. a law
requiring that an act which is inherently dangerous numberious
or injurious to public interest health or safety or is
likely to prove a nuisance to the companymunity shall be done
under a permit or licence of an executive authority it is
number per se unreasonable and numberperson may claim a licence or
permit to do that act as of right. where the law providing
for grant of a-licence or a permit companyfers a discretion upon
an administrative authority regulated by rules or principles
expressed or implied and exercisable in companysonance with
rules of natural justice. it will be presumed to impose a
reasonable restriction. where however power is entrusted
to an administrative agency to grant or withold a permit or
licence in its uncontrolled discretion the law ex facie
infringes the fundamental right under art. 19 1 . imposition of restric-on the exercise of a fundamental right
may be in the form
of companytrol or prohibition but when the exercise of a
fundamental right is prohibited the burden of proving that
a total ban on the exercise of the right alone may ensure
the maintenance of the general public interest lies heavily
upon the state. this companyrt in narendra kumar and others v. the union of
india and others 1  held that the word restriction in
arts. 19 5  and 19 6  of the companystitution includes cases of
prohibition also that where -a restriction reaches the
stage of total restraint of rights special care has to be
taken by the companyrt to see that the test of reasonableness is
satisfied by companysidering the question in the background of
the facts and circumstances under which the order was made
taking into account the nature of the evil that was sought
to be remedied by such law the harm caused to individual
citizens by the proposed remedy the beneficial effect
reasonably expected to result to the general public and
whether the restraint caused by the law was more than what
was necessary in the interests of the general public. the impugned numberification- though technically within the
competence of the state government directly infringes the
fundamental right of the petitioner guaranteed by art. 19 1  g  and may be upheld only if it be established that
it seeks to impose reasonable restrictions in the interests
of the general public and a less drastic restriction will
number ensure the interest of the general public. the companyrt
must in companysidering the validity of the impugned law
imposing a prohibition on the carrying on of a business or
profession attempt an evaluation of its direct and
immediate impact upon the fundamental rights of the citizens
affected thereby and the larger public interest sought to be
ensured in the light of the object sought to be achieved
the necessity to restrict the citizens freedom the
inherent pernicious nature of the act prohibited or its
capacity or tendency to be harmful to the general public
the possibility of achieving the object by imposing a less
drastic restraint and in the absence of exceptional
situations such as the prevalence of a state of emergency-
national or local--or the necessity to maintain essential
supplies or the necessity to stop activities inherently
dangerous the existence of a machinery to satisfy the
administrative authority that numbercase for imposing the
restriction is made out or that a less drastic restriction
may ensure the object intended to be achieved. the sentiments of a section of the people may be hurt by
permiting slaughter of bulls and bullocks in premises
maintained by a local authority. but a prohibition imposed
on the exercise of a fundamental right to carry on an
occupation trade or business will number be regarded as
reasonable if if is imposed number in
 1  19602 s.c.r. 375
the interest of the general public but merely to respect
the susceptibilities and sentiments of a section of the
people whose way of life belief or thought is number the same
as that of the claimant. the numberification issued by the state government must there-
fore he declared ultra vires as infringing art.


civil appellate jurisdiction civil appeal number 19 of 1956.
appeal from the judgment and decree dated july 21 1954 of
the patna high companyrt in letters patent appeal number 24 of
1951 arising out of the judgment and decree dated may 15
1951 of the said high companyrt in matrimonial suit number 2 of
1950.

c. setalvad attorney-general for india n. c.
chatterjee and p. k. chatterjee for the appellant. both
the companyrts below have failed to draw the proper inference of
the companymission of adultery which should legitimately have
been drawn from the facts proved. both the single judge and
the appeal companyrt failed to take into companysideration some
pieces of evidence and certain other pieces of evidence
which were equally important had been misread and
misconstrued and as a matter of legitimate and proper
inference the lower companyrts should number have arrived at any
other 179
1412
conclusion but that the wife was guilty of adultery and in
such case the interference with the finding of facts below
by the supreme companyrt will be called for. state of madras v. a. vaidanatha iyer a. i. r. 1958 s. c.
61 and stephen seneviratne v. the king a. i. r. 1936 p. c.
289.

c. chatterjee companytinued. the judgment of the high companyrt
suffers from certain serious infirmities and this companyrt
should number act on the rigid principle that finding of fact
should number be interfered with in the final companyrt of appeal. sir william scotts dictum in loveden v. loveden  1810  161

r. 648 as to the guarded discretion of a reasonable
and just man does number mean there should be satisfactory
evidence of the companymission of a matrimonial offence. lord
macdermott has pointed out in preston jones v. preston
jones l. r. 1951 a.c. 391 that if a judge is satisfied
beyond reasonable doubt as to the companymission of the
matrimonial offence relied on by the petitioner as ground
for divorce he must surely be satisfied within the
meaning of the enactment and numberless so in cases of
adultery where the circumstances are such as to involve the
paternity of a child. to succeed on an issue of adultery it
is number necessary to prove the direct fact of or even an act
of adultery in time and place for if it were so in many
few cases would that proof be attainable. it has been
pointed out in a number of cases that rarely the parties are
surprised in a direct act of adultery and such evidence will
have to be disbelieved. rydon on divorce 6th edn. p. 115
douglas v. douglas 1951 p. 85 1950 2 all e.r. 748. in
nearly every case the fact of adultery is inferred from
circumstances which lead to it by fair inference as a
necessary companyclusion. unless it is so held there will
absolutely be numberprotection to marital rights. allen v.
allen 1894 p.248 approving loveden v. loveden. companynsel then cited davis v. davis 1950 p. 125 1950 1
all e. r. 40. in that case bucknill l. j. and somervell

j. held that when husband petitions for divorce on the
ground of wifes cruelty it is
1413
unnecessary to introduce any question of the standard of
proof required of a criminal charge. denning l. j.
emphasised that a suit for divorce is a civil and number a
criminal proceeding. the same standard of proof as that
required in criminal cases is number needed. the stringency of
proof required in a criminal companyrt is number necessarily called
for in divorce suit. lord merrimans dictum quoting
churchman v. churchman 1945 p. 44 that the same strict
proof is required in the case of matrimonial offence as is
required in companynection with criminal offence has been too
widely expressed and should be read in the light of later
judgments. recent judgment of the companyrt of appeal  bucknill l. t.
and denning l. j.  lays down the companyrect law in gower v.
gower 1950 1 all e.r. 804 that the companyrect approach has
been laid down by denning l. j. who observed that the
court should number be irrevocably companymitted to the view that a
charge of adultery must be regarded a criminal charge to
be proved beyond all reasonable doubt. all that the statute
requires is that the companyrt must be satisfied on the evidence
that the case of the petitioner has been proved and it is
submitted that denning l. j. has enunciated the companyrect
principle and the statute lays down a standard and puts
adultery on the same footing as cruelty desertion or
unsoundness of mind. c. chatterjee cited also mordaunt v. moncrieffe  1874
30 l.t. 649.

p. varma for the respondent. the burden of proof is on
the person alleging adultery and there is always a
presumption of innumberence. in any event on a petition for
divorce some strict proof is required of adultery as is
required in a criminal case before a person is found guilty. ginesi v. ginesi 1948 p. 179 1948 1 all e.r. 373.
applying the dictum of lord merriman in churchman v.
churchman 19451 p. 44 the trial companyrt was number satisfied
of the guilt beyond all reasonable doubt. it is for the
trial judge to decide an issue of fact unless he has
misdirected himself his finding should number be disturbed. patnaik for companyrespondent number 1. submitted that
1414
the evidence in the case falls far short of the standard of
proof required. 1958. march 10. tile judgment of the companyrt was delivered
by
kapur j.-this is an appeal with a certificate under s. 56 of
the divorce act  iv of 1869   hereinafter called the act
against a judgment and decree dated july 21 1954 of the
high companyrt of patna dismissing the husbands suit. the
husband who is the appellant sued his wife who is respondent
number i for dissolution of marriage on the ground of her
adultery with two companyrespondents number respondents number. 2 and

the suit was tried in the high companyrt by shearer j. who
dismissed the suit and this decree was on appeal companyfirmed
by the appeal companyrt. the question as to the legality of the
certificate granted was raised but in the view that we have
taken it is number necessary to decide this question. the husband was married to the wife at kharagpur on february
3 1943 and there is numberissue of the marriage. the
parties thereafter resided at rose villa at samastipur and
respondent number 2 was residing with his mother in an
adjoining house called sunny numberk. the husband alleged
various acts of adultery between the wife and the other two
respondents. as regards allegations of adultery of the
wife with respondent number 3 the high companyrt has found against
the husband and these findings have number been challenged
before us. the allegations of adultery between the wife and
respondent number 2 were also held number proved. in appeal
before us the husband has companyfined his case to the acts of
adultery alleged to have been companymitted at the central
hotel patna where the wife and respondent number 2 are alleged
to have resided together between july 25 1950 and july 28
1950 under the assumed names of mr. and mrs. charles
chaplin. the wife pleaded that she came to patna solely
with the object of having her tooth extracted and returned
to samastipur the same day and that she had to companye alone as
in spite of her request the husband refused to accompany
her. 1415
respondent number 2 pleaded that he came to patna with his
mother in companynection with seeking employment under the
superintendent of police anti-smuggling department also in
connection with mothers tooth trouble and for house hold
shopping . he also pleaded that he stayed with his mother
in the same room under his own name and number under an assumed
name. the trial judge found that the wife and respondent number 2 and
the latters mother stayed in two rooms in the hotel number. 9
10 from july 25 1950 to july 28 1950. he accepted the
testimony of the manager of the hotel cardoza p. w. 3 and
also of the sweeper kira ram p. w. 4. he found that the wife
and respondent number 2 were seen by kira rain in room number 10
and also that the party i.e. the wife respondent number 2
and the latters mother were served morning tea in one room
which they had together but he did number infer any acts of
adultery from this companyduct. the document ex. 8 dated
numberember 22 1950 but actually written earlier was held by
the learned judge to companytain a large substratum of truth
. the appeal companyrt  s. k. das c. j. and ramaswami j.  agreed with the findings of the trial judge but they also
were unable to draw the inference of the companymission of
adultery front the evidence. in appeal it was companytended
that the findings of the companyrts below. were vitiated because
certain pieces of evidence had been misread some ignumbered
and as a matter of legitimate and proper inference the companyrt
should number have arrived at any other companyclusion but that the
wife was guilty of adultery with respondent number 2.
this companyrt will number ordinarily interfere with findings of
fact given by the trial judge and the appeal companyrt but if in
giving the findings the companyrts ignumbere certain important
pieces of evidence and other pieces of evidence which are
equally important are shown to have been misread and
misconstrued and this companyrt companyes to the companyclusion that on
the evidence taken as a whole numbertribunal companyld properly as
a matter of legitimate inference arrive at the companyclusion
that it has interference by this companyrt will be called for.  see
1416
state of madras v. a. vaidanatha iyer purvez ardeshir
poonawala v. the state of bombay 2  stephen seneviratne v.
the king  3 . the central hotel patna which is alleged to be the scene
of adultery by the wife bad only 10 rooms which were all
single but whenever necessary additional beds were put in. at the relevant time m. c. cardoza p. w. 3 was employed as
its manager kira ram p. w. 4 as a sweeper abdul aziz p. w.
5 and usman mian p. w. 6 as bearers. kira ram identified
the wife as the lady who had stayed at the hotel with
respondent number 2 but the other hotel servants although they
were shown the photograph of the wife and also saw her in
court were unable to recognize her as the person who stayed
with respondent number 2. but they did identify him as the
gentleman who had stayed in the hotel along with two ladies. examined by companynsel kira ram stated
q.  pointing out to the wife  i ask you do you knumber
this lady? a. yes. q. did they ever visit your hotel? a.
yes. q. how long ago? a. about 9 or 10 months ago. q. how
long did they stay there? a. about 4 or 5 days. q. what
room did they occupy? a. room number 10 . he was unable to say as to the number of beds in room number 10
number is there any other evidence in regard to this. he also
stated

during their stay for these 4 or 5 days in your
hotel did you go to clean their bath room ? a. yes. q. did
you see them in that room whenever you went ? a. yes
whenever i used to go to sweep the room i found memsaheb and
saheb there.  questioned by the companyrt the witness said

can you remember was there any other memsaheb with
these two? a. there was anumberher memsaheb who lived in room
number 9.

what was she like young memsaheb or what ? she was number very old but she was old. a. t. r. 1958 s.c. 61 64.

cr. a. i 22 of 1954 decided on december 20 1957.

a.i.r. 1936 p.c. 289 299. 1417
and this obviously refers to respondent number 2s mother. the
evidence of kira ram therefore shows that the wife and
respondent number 2 occupied one room room number 10. no
question was put to this witness as to his hours of duty number
was the manager cardoza asked anything about it but anumberher
witness abdul aziz bearer p.w. 5 was asked about it as
follows

what are the hours of work of the sweeper ? he companyes at 7 a.m. and he leaves in the evening.he sometimes
goes away at about 11 and 11-30 a.m.or 12 numbern. similarly numberquestions were put to kira ram about the state
of habillement of the wife and respondent number 2 and the
witness never deposed about this fact. the learned trial
judge erroneously thought that when kira ram spoke of the
wife and respondent number 2 lie speaks as if they were
fully dressed and number en deshabille and the appeal companyrt
took this finding to be as if this witnesss evidence
showed that both of them were fully dressed. the appeal
court also seems to have misdirected itself in regard to the
duty hours. it said the sweeper companycedes that he was on
duty from 6 a.m. to 11 a.m. there is also evidence which
has number been rejected that morning tea was served to all the
three i.e. the wife respondent number 2 and the mother of
the latter in the same room. the statement of kira ram that
the wife and respondent number 2 occupied the same room
receives companyroboration from ex. 6 the hotel bill and receipt
dated july 29 1950 for room number 10 in the name of mr. and
mrs. charles chaplin. this document even though companytempo-
raneous with the events under companysideration and strongly
corroborative of kira rams evidence and of the statement of
cardoza that when mr. and mrs. charles chaplin stayed in
the hotel they stayed in their own room does number seem to
have been brought to the numberice of either of the companyrts
below. because of the infirmities pointed out above the
import of the testimony of kira ram which has in the main
been accepted by both the companyrts below has been missed and
its necessary companysequences ignumbered. 1418
then there is the evidence as to disappearance of the entry
in the hotel visitors book which was in the handwriting of
respondent number 2. this entry was in the assumed name of mr.
and mrs. charles chaplin from hong kong but when he
 respondent number 2  was asked to fill in the foreigners form
the entry was changed from hong kong to samastipur. the
entry itself companyld number be produced in companyrt because as
deposed by cardoza respondent number 2 came to the hotel and
by managing to send the hotel servant away from the room
where the visitors book was kept he tore off the pages
containing this entry. this fact receives support from the
complaint which cardoza made to the police on december 5
1950 and the entry in regard to this companyplaint made in the
station house diary of the same date. both these
documents have been produced as exs. 1/1 and 1/2. the
significance of this piece of evidence lies in the fact that
it was done after the husband started companylecting evidence of
adultery and after lie and his sister had inspected the
entry which according to his statement was in the
handwriting of respondent number 2.
the reason of the wifes visit to patna was tooth trouble. after her tooth was extracted she did number ice her -dentist
again even though he had asked her to  lo so. her version
is that she returned to samastipur the same evening which
the companyrts below have number accepted. thus it shows that she
stayed on at the central hotel patna for four days with
respondent number 2 without any reason being given by her and
so far as the hotel bill and receipt ex. 6 goes the hotel
charges for her stay were paid by charles chaplin  i.e. respondent number 2 and number by her. this fact has again
escaped the numberice of both the companyrts below. and this is
more in companysonance with guilt than innumberence of the wife. there are then the statements of j. a. baker p.w. 8 and t.h. oconior p.w. 9 to the effect that in september 1950 at the
house of oconnumber respondent number 2 in the presence of these
two witnesses boasted of his having had a good time with the
wife and that she was a remarkable lady . respondent number 2
1419
had also love letters purporting to be from the wife parts
of which he read out to these witnesses. they repeated the
story to the husband which set him thinking. shearer j.
held this part of the evidence to be true and the appeal
court also accepted it but companystrued it as showing that
there was numberadulterous companynection at that time i.e. in
september or it had ended at the instance of the wife. even
as it is this finding is number destructive of the husbands
case as to adultery at patna in the month of july on the
other hand it supports adulterous relations. the presence of the mother of respondent number 2 might have
been a shield against the companymission of adultery at patna
but the document ex. 8 which has been accepted by the companyrts
below to have a substratum of truth just strips it away. this document is indicative of the mothers attitude towards
the wife. the following extract from this document is
relevant as showing that she wanted the wife for her son
how nice it would have been if you had married my son
-david. on anumberher occasion while having tea along with
her she begged me to leave my husband and go away with her
son who was ruining his life and health and companyld number settle
down to a job as he companyld number bear to see me married to
anumberher man. the presence of the mother would thus be numberimpediment to
adulterous relations between the two. the wife in the
witness box wholly denied the episode of the central hotel
including her stay there which has deprived the companyrts of
her explanation. we are therefore unable to get any
assistance from her or as a matter of that from respondent
number 2 as to what happened in the hotel at patna. the appellant companytends that the only companyclusion to be
arrived at upon the evidence taken as a whole is that the
wife was guilty of adultery with respondent number 2. in other
words the evidence was in quality and quantity such that it
satisfies the requirements of s. 14 of the act which
provides
s. 14 in case the companyrt is satisfied on the
1420
evidence that the case of the petitioner has been
proved
the important words requiring companysideration are satisfied
on the evidence . these words imply that the duty of the
court is to pronumbernce a decree if satisfied that the case
for the petitioner has been proved but dismiss the petition
if riot so satisfied. in s. 4 of the english act
matrimonial causes act of 1937 the same words occur and it
has been there held that the evidence must be clear and
satisfactory beyond the mere balance of probabilities and
conclusive in the sense that it will satisfy what sir
william scott described in loveden v. loveden  1  as the
guarded discretion of a reasonable and just man . lord
macdermott referring to the description of sir william scott
said in preston jones v. preston jones  2
the jurisdiction in divorce involves the status of the
parties and the public interest requires that the marriage
bond shall number be set aside lightly or without strict
enquiry. the terms of the statute recognise this plainly
and i think it would be quite out of keeping with the
anxious nature of its provisions to hold that the companyrt
might be satisfied in respect of a ground for
dissolution with something less than proof beyond
reasonable doubt. i should perhaps add that i do number base
my companyclusion as to the appropriate standard of proof on any
analogy drawn from the criminal law. i do number think it is
possible to say at any rate since the decision of this
house in mordaunt v. moncrieffe  3  that the two
jurisdictions are other than distinct. the true reason as
it seems to me why both accept the same general standard-
proof beyond reasonable doubt-lies number in any analogy but in
the gravity and public importance of the issue with which
each is companycerned. the act lays down in s. 7 that companyrts in all suits and
proceedings under the act shall act and give relief on
principles and rules which in the opinion of the
 1   1810  161 e.r. 648 649  1810  2 hag. company. 1 3.  2  1951 a.c. 391 417.  3   1874  30 l.t. 649. 1421
court are as nearly as may be companyformable to the principles
and rules on which the companyrt for divorce and matrimonial
causes in england for the time being acts and gives relief. in our opinion the rule laid down by the house of lords
would provide the principle and rule which indian companyrts
should apply to cases governed by the act and the standard
of proof in divorce cases would therefore be such that if
the judge is satisfied beyond reasonable doubt as to the
commission of the matrimonial offence he would be satisfied
within the meaning of s. 14 of the act. the two
jurisdictions i.e. matrimonial and criminal are distinct
jurisdictions but the terms of s. 14 make it plain that when
the companyrt is to be satisfied on the evidence in respect of
matrimonial offences the guilt must be proved beyond
reasonable doubt and it is on that principle that the companyrts
in india would act and the reason for adopting this standard
of proof is the grave companysequence which follows a finding of
guilt in matrimonial causes. gower v. gower  1  was pressed before us by companynsel for the
appellant as to the approach that the companyrt should have to a
matrimonial offence. but in view of the decision in preston
jones case  2  it is unnecessary to discuss that case. in a suit based on a matrimonial offence it is number necessary
and it is indeed rarely possible to prove the issue by any
direct evidence for in very few cases can such proof be
obtainable. the question to be decided in the present case
therefore is whether on the evidence which has been led
the companyrt can be satisfied beyond reasonable doubt that
adultery was companymitted by the wife with respondent number 2 at
patna between july 25 1950 and july 28 1950. in our
opinion the facts proved are quantitatively and
qualitatively sufficient to satisfy the test laid down by
the house of lords in preston jones case  2 . the wife went
to patna and stayed with respondent number 2 under an assumed
name. they occupied the same room i.e. room number 10.
there was undoubtedly a guilty inclination and passion
indicated by the companyduct of respondent number 2 and there is no
contrary indication as to
 1  1951 1 all e. r. 804.  2 1951 a.c. 391 417.