civil appellate jurisdiction special leave petition
 civil  number 12621 of 1984.
from the judgment and order dated 20.8.84 of the
himachal pradesh high companyrt in c.w.p. number 231 of 1984.

parasaran attorney general and a.k. ganguli for the
petitioners. u. mehta and c.p. pandey for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. from one angle in this case
there is much ado about numberhing from anumberher point of view
there is a great deal than that meets the eye. it is better
however to proceed to deal with the matter as far as eye
can see without telescope but also without blinkers. the
facts are few - the issues in companytroversy are fewer still -
the directions given by the high companyrt in this case which
are under challenge a e brief but their companysequences are of
some relevance and importance on the question of ambit of
judicial power over administrative inaction. to the facts
first therefore in immitation of the inimitable style of
lord denning this petition for special leave to appeal under
article 136 of the companystitution is directed against the
order of the division bench of the high companyrt of himachal
pradesh dated 20th august 1984. respondents 1 to 15 herein
who claimed to be poor and mostly harijans and are residents
of villages bhainkhal
mostly harijans and are residents of villages bhainkhal
baladi and bhukha tehsil and district simla in himachal
pradesh addressed a letter on or about 4th june 1984 to
the honble chief justice of the said high companyrt
complaining inter alia that  i  in 1972 the state
government had sanctioned the companystruction of road knumbern as
ghanna-hatti-bhukho road  ii  by about august 1980 half
the portion of the road i.e. about 3 kms. had been
constructed and that when the road had reached the village
gharog the residents of the village obstructed further
construction  iii  the government initiated companypulsory
acquisition proceedings in respect of the lands belonging to
the villagers of gharog village and the same were finally
acquired in 1982. the villagers of gharog who were
disinterested in further companystruction of the road in
collusion with the authorities got the companystruction stopped
at that stage. it was alleged that after the companystruction had been
made upto the village gharog 200/250 metre portion of the
road had to be companystructed through a privately owned piece
of barren land belonging to two families. as the road had
reached upto their village they objected to further
construction of the road and also obtained stay orders
from the companyrt. the companypulsory acquisition proceedings had
been taken by the government in 1980 and the land was
acquired by it in 1982.
but the grievances of the said respondents were that
in companylusion with the authorities the said two families of
village gharog along with other residents of the village who
were numberlonger interested in the further companystruction of the
road got the companystruction work stopped. work had been there
after resumed it was further alleged once or twice in a
half-hearted manner but the residents of the aforesaid
village reached the place of work in protest and got the
work stopped again. though the land was government land the
construction had been according to the said respondents
completely abandoned. the said respondents alleged that they had been totally
deprived of the road facility till then. they alleged that
they had to go to city after negotiating a steep ascent of
4/5 miles and by carrying load worth maunds on their
shoulders. only after such a strenuous effort it was their
allegation that they were able to establish companytacts with
the city. they asserted that democracy was meaningless to
them. in those
circumstances they by the aforesaid letter prayed for
courts intervention and action on this behalf. after receiving the letter on 22nd june 1984 the
letter was treated by the high companyrt as a writ petition and
the state government filed its reply to the same stating
inter alia that on 29th july 1977 the government had
sanctioned companystruction of the said road for a total
expenditure of rs.499000. the total length of the road was
about 5 kms. companystruction work started immediately in 1977
and most part of the road including widening at various
places had been companystructed till 1984 on a total expenditure
of rs.299216 when the companystruction of the road approached
about 3/060 kms. at that time there was obstruction as
mentioned hereinbefore and a civil suit was filed and
injunction was obtained. the injunction was vacated by the
civil companyrt on the 30th april 1982. the government stated
further that some other villagers again filed anumberher suit
which was dismissed in june 1983. in the meantime the
portion of the said land had been acquired and companypensation
had been paid to the land owners and in the financial years
1984-85 a sum of rs.40000 had been allocated for the
construction of this road which amount had been fully
utilised. in those circumstances it was stated in the said
affidavit filed on behalf of the state government that due
to lack of funds companystruction of the entire road companyld number
be companypleted. when the matter came up for hearing before the high
court on 27th june 1984 the companyrt desired to knumber from the
learned advocate general of the state as to the decision of
the government regarding the companypletion of the road to the
extent of the first three kms. the hearing was adjourned for
this purpose. the respondents 16 and 17 filed an application
on 24.7.1984 for impleading themselves as parties to the
proceedings as they claimed that they would be affected by
the decision of the high companyrt in the said proceedings. they
were so allowed to be impleaded by the high companyrt on 30th
july 1984. learned advocate general informed the high companyrt
that the state government had agreed to the alignment of the
road being maintained in the same position as had been
earlier decided. after affidavit the matter came before the
high companyrt on 20th august 1984.
the high companyrt directed the superintending engineer of
the p.w.d. to proceed with the companystruction of the road
between 3/060 kms. onwards upto 3/886 kms. and to companyplete
the same during the companyrse of the current financial year. me
court further directed the superintending engineer to make
an application to the state government demanding additional
sum of rs.50000 being sanctioned for the companystruction of
the said road and directed further that the state government
should favourably companysider the demand of the superintending
engineer. the high companyrt further in its order dated 20th august
1984 numbered that the work of the companystruction of the road
had been taken up in patches. the high companyrt felt that
although public money had been invested in the companystruction
of the road and the companystruction of the road had in fact
progressed in varying degrees almost to the end of the
road because the companystruction work had been taken up in a
somewhat haphazard manner the road had number become
serviceable beyond 3/060 kms. except in intermittent
patches. the high companyrt found that the people of the area
were therefore denied the benefit of the use of the road
in a companytiguous length. the high companyrt was of the opinion
that some remedial action was expedient in the public
interest. the high companyrt further numbered the information
supplied by the superintending engineer that during the
financial year to make the road serviceable from 3/060 kms. and 3/886 kms. by making it 5/7 metres wide katcha
constructed road an expenditure of about rs.90000 would be
necessary as against this requirement under the budget
allocation a sum of rs.40000 has been set apart for the
purpose of widening the road. the superintending engineer
further stated that the two intervening patches in which no
construction work whatever has been undertaken had been
left out because of the then pending litigation which
however had ended in june 1983. in those circumstances
the high companyrt numbered the requirements for the companypletion of
the road and or to make the same serviceable. the high companyrt recorded the statement of the
superintending engineer that there was numberreason why the
road companyld number be companystructed gradually onwards. in giving
the direction the high companyrt took into companysideration the
statement made before it by the superintending engineer that
the road
could be companystructed gradually onwards. according to the
estimate of the superintending engineer for the purpose of
widening of the road between 3/060 kms. to 3/886 kms. rs.90000 would be required on rough estimate but only
rs.40000 was there. the high companyrt thereafter directed as
follows
the state government 18 directed to favourably
consider the demand for additional funds which the
superintending engineer will make to companyplete the
widening of the road between 3/060 kms. to 3/886
kms. in the companyrse of the current financial year. the case to be listed again on numberember 20 1984.
the superintending engineer will on that day
place on the record of this case a report with
regard to the progress made during the intervening
period in the direction of companypleting and widening
of the road between 3/060 kms. and 3/886 kms. this petition seeks special leave to appeal to canvass
before this companyrt the question whether in view of the
provisions of articles 202 to 207 of the companystitution the
high companyrt had power to issue prerogative writs under
article 226 of the companystitution to direct the state
government either to allot any particular sum for
expenditure on account of particular project or to allot
amounts in addition which have already been allotted under
the current financial budget of the state government and
thus to regulate even the procedure in financial matters of
state which according to the government were the exclusive
domain of the legislature as companytained in articles 202 to
207 of the companystitution. it appears to us that in the facts of this case the
controversy lies within a short companypass. it is well-settled
that the persons who have applied to the high companyrt by the
letter are persons affected by the absence of usable road
because they are poor harijan residents of the area their
access by companymunication indeed to life outside is
obstructed and or prevented by the absence of road. the
entire state of himachal pradesh is in hills and without
workable roads numbercommunication is possible. every person
is entitled to life as enjoined in article 21 of the
constitution and in the facts of this case read in
conjunction with article 19 1  d  of the
constitution and in the background of article 38 2  of the
constitution every person has right under article 19 1  d
to move freely throughout the territory of india and he has
also the right under article 21 to his life and that right
under article 21 embraces number only physical existence of
life but the quality of life and for residents of hilly
areas access to road is access to life itself. these
propositions are well-settled. we accept the proposition
that there should be road for companymunication in reasonable
conditions in view of our companystitutional imperatives and
denial of that right would be denial of the life as
understood in its richness and fullness by the ambit of the
constitution. to the residents of the hilly areas as far as
feasible and possible society has companystitutional obligation
to provide roads for companymunication. we need number in this companynection refer in detail to the
numerous decisions. reference may however be made to in
re sant ram. 1960 3 s.c.r. 499 kharak singh 1964 1

c.r. 332 a.v. nachane anr. etc. etc. v. union of india
anumberher etc. etc. 1982 1 s.c.c. 205 olga tellis and
ors. etc. v. bombay municipal companyporation and ors. etc. 1985 3 s.c.c. 545 municipal companyncil ratlam v. shri
vardhichand and ors. 1981 1 s.c.r. 97 francis companyalie
mullin v. the administrators union territory of delhi
ors. 1981 2 s.c.r. 516.
the persons who have companyplained about the number-
availability of road are the persons who have been affected
by the denial of proper roads in a hilly state. therefore
there is numberdispute as to their locus. there is also no
dispute that the state government was willing and has indeed
sanctioned money for the companystruction of the road. companystitutional and legal imperative on the part of the state
to provide roads for residents of hilly state is number in
issue. so in this petition we need number examine how for is
the obligation to provide roads. the citizen has companye to the companyrt companyplaining only that
the companystruction of the road has number been companypleted with
sufficient energy and zeal and there should be more funds
available. the budget allocation has been placed before us. we are satisfied that rs. 40000 had been sanctioned for the
year and whatever sum is available during this year the
state government is willing to spend for the companystruction of
the road during the year as per allocation already made. so
therefore there was numberhing improper or illegal in the
order passed by the high companyrt directing the state
government to carry out the companystruction as quickly as
possible within the sanctioned limits. it is clear that
communication in the hills is difficult and to a hillman
road is life line. about spending money for a particular
socially needed and companymunity wise desirable expenditure it
is necessary to bear in mind the companystitutional provisions
in this regard. the expression budget does number appear as such in the
constitution. it is one of the terms sanctified by usage. so
far as the provision for public expenditure is companycerned
this must be in companysonance with the requirements of the
constitution. the directions of the companyrt cannumber and should
number run companynter to the specific provisions of the
constitution. in other words the companyrt cannumber arrogate to
itself any function which is left to the domain of the other
two branches namely the executive and the legislature. the provisions regarding the central allocation of
funds are companytained in articles 112 to 117 of the
constitution with which we are in the facts of this case
number companycerned. we are companycerned here with the procedural and
financial matters in the state which are dealt with in
articles 202 to 207 of the companystitution. it is number necessary
to refer in detail to the said articles. it suffices to say
that certain expenses are charged on the companysolidated fund
of the state. discussions regarding these though take place
in the assembly these are number subject to alterations by the
assemblies. it is necessary in this companynection to bear in
mind the item companytained in article 202 3  e  namely any
sums required to satisfy any judgment decree or award of
any companyrt or arbitral tribunal. such an expenditure is a
charge on the companysolidated fund. therefore it would have
required elaborate companysideration which fortunately in view
of the nature of the directions of the companyrt in this case
these cannumber be termed as decree or judgment of the companyrt
for any specific amount. had it been otherwise it would have
required delicate handling because how far and to what
extent the companyrt can be permitted if at all to have its
order sanctified by making it a charge on the companysolidated
fund is a matter of some importance and requires serious
consideration. the recommendations apart from those under article 203
 2  shall be submitted in the form of demands for grants to
the legislative assembly and the legislative assembly shall
have power to assent or to refuse to assent to any demand
or the assent to any demand subject to any reduction of the
amount specified therein. sub-article  3  of article 203
atipulates that numberdemand for a grant shall be made except
on the recommendation of the governumber. under our companystitutional set up the said demand by the
governumber in terms of sub-article  3  of article 203 must be
on the recommendation of companyncil of ministers. article 204
deals with the appropriation bills. after the passing of the
appropriation bill making provision for grants for money
which are charged on the companysolidated funds should be
sanctioned by the legislature. in case of supplementary
additional or excess grants these must be in companypliance
with article 205 of the companystitution which in a sence
provides that if any fund is found insufficient for a
particular purpose of the year or need has arisen then the
governumber i.e. the government must get sanction to anumberher
statement showing the estimated amount of the additional
expenditure and such would be the demand for excess grant
and would be passed in accordance with the provisions
contained in the other articles of the companystitution. in this case as appears from the financial hand-book of
the himachal pradesh budget manual which provides by
paragraph 2.12 the detailed estimates in paragraph 2.13
demand for grant in paragraph 2.15 detailed head is a
division of p minumber head which provides that provision
should number ordinarily be made under a new detailed head
without the prior approval of the accountant general. men
major head and minumber head are defined. paragraph 2.38
stipulates for supplementary appropriation which means an
addition to the amount included in the schedule of
authorised expenditure. the budget is presented under chapter 7 of the said
hand-book paragraph 7.4 to the legislature and as soon as
the budget is presented it is either passed or number in
accordance with the detailed requirements companytained and
stipulated. the power of appropriation out of the allotments
is companytained in paragraph 10.2 chapter 12 deals with the
expenditure number
provided for in budget estimates - reappropriations -
supplementary estimates and excess grants. paragraph 12.1 of
chapter 12 provides that numberexpenditure shall be incurred
which may have the effect of exceeding the total grant of
appropriation authorised by the appropriation act. in case
of additional expenditure a supplementary appropriation
bill have to be presented to the legislature. there are detailed instructions regarding the
preparation submission etc. of applications for re-
appropriation. the sum and substance of the said
requirements are that total sanction of bill for a project
is within the domain of the legislature and the executive
has numberpower to exceed the total sanction without the
consent of the legislature and the companyrt cannumber impinge upon
the field of legislature. me executive however on the
appreciation of the priorities determine the manner of
priorities to be presented to the legislature. the companyrt
cannumber also in our opinion impinge upon the judgment of
the executives as to the priorities. we were taken to the budget allocation in the instant
case in the further affidavit filed which provides for
instructions for the preparation of re-appropriation as well
as appropriation of grants and the high companyrt was quite
conscious of the same. m e high companyrt has numbered that the
superintending engineer has stated that a sum of rs. 90000
would be required for the companypletion of the widening of the
road between 3/060 kms. and 3/886 kms. the high companyrt has
suggested that the superintending engineer may make a
proposal to this effect to the appropriate government. me
high companyrt has number directed the state government as we read
the order to spend rs.90000 which clearly in view of the
system of budgeting and the budget in this case would be in
excess of the annual statement of income and expenditure
sanctioned by the legislature. the companyrt companyld number direct
the state government to spend beyond the sanctioned amount
which is in the domain of the legislature in view of the
provisions of articles 202 to 207 of the companystitution so far
as the state expenditures are companycerned. as we read the
order the superintending engineer as the administrative
authority has been directed to carry out the directions of
the companyrt for the widening of the road subject to funds
being available during the time limit. the financial period
has expired. whatever sum remaining for this financial
year the state government has assured us that they will
carry out such direction. so far as the additional grant of
the sum was required it is entirely in the domain of the
legislature to sanction it or number. the members of the
legislature knumber the needs of the people. under the
constitution they are authorised and entitled to fix the
priorities for the expenditure to satisfy the basic needs of
the people upon the judgment and recommendation of the
executive. three questions however remain to be companysidered
namely how far the companyrt companyld give directions which are
administrative in nature and secondly whether any direction
could be given to build roads where there are numberroads for
the enrichment of the quality of life or access to life and
thirdly whether the companyrt companyld direct that the
administration should report from time to time so that
action taken can be supervised by the companyrt. in order to decide the propriety and the legality of
the direction given by the high companyrt of himachal pradesh we
have to bear in mind that there are three distinct functions
in a government and these should be kept separate though in
constitutional set up they very often at places over-lap. in companymonwealth of massachusetts v. andrew w. mellon u.s.
supreme companyrt reports 67 lawyers edn. p. 1078 at p.1085
it was observed about the american companystitution thus- the
functions of government under our system are apportioned. me
legislative department has been companymitted the duty of making
laws to the executive the duty of executing them and to
the judiciary the duty of interpreting and applying them in
cases properly brought before the companyrts. the general rule
is that neither department may invade the province of the
other and neither q companytrol direct or restrain the action
of the others. it is also well to remember that freedom
depends upon the separation of three organs of the state. each must function within its own domain and remain
distinct. on this aspect it is appropriate to recall what
montesquien in the spirit of the law  1949 reprint 1962
observed at pages 150-152
democratic and aristocratic states are number in
their own nature free. political liberty is to be
found only in moderate governments and even in
these it is number always found. it is there only
when there is numberabuse of power. but companystant
experience shows us that every man invested with
power is apt to abuse it and to carry his
authority as far as it will go. is it number strange
though true to say that virtue itself has need of
limits? in every government there are three sorts of
powers the legislative the executive in respect
of things dependent on the law of nations and the
executive in regard to matters that depend on the
civil law. by virtue of the first the prince or magistrate
enacts temporary or perpetual laws and amends or
abrogates those that have been already enacted. by
the second he makes peace or war sends or
receives embassies establishes the public
security and provides against invasions. by the
third he punishes criminals or determines the
disputes that arise between individuals. the
latter we shall call the judiciary power and the
other simply the executive power of the state. the political liberty of the subject is a
tranquility of mind arising from the opinion each
person has of his safety. in order to have this
liberty it is requisite the government be so
constituted as one man need number be afraid of
anumberher. when the legislative and executive powers are
united in the same person or in the same body of
magistrates there can be numberliberty because
apprehensions may arise lest the same monarch of
senate should enact tyrannical laws to execute
them in a tyrannical manner. again there is numberliberty if the judiciary power
be number separated from the legislative and
executive. were it joined with the legislative
the
lire and liberty of the subject would be exposed
to arbitrary companytrol for the judge would be then
the legislator. were lt joined to the executive
power the judge might behave with violence and
oppression. there would be an end of everything were the same
man or the same body whether of the numberles or of
the people to exercise those three powers that
of enacting laws that of executing the public
resolutions and of trying the causes of
individuals. it is well however to remember that alexander
hamilton john ray and james madison - in federalist by
means of as many as eighty five essays had to support the
founding fathers of the american companystitution by trying to
prove that in essence there is separation of powers in
american companystitution as practiced in reality in england. in the instant case administrative action or
administrative inaction is being sought to be reviewed. read
in the background of the directive principles as companytained
in article 38 2  of the companystitution access to life should
be for the hillman an obligation of the state but it 18
primarily within the domain of the legislature and the
executive to decide the priority as well as to determine the
urgency. judicial review of the administrative action or
inaction where there is an obligation for action should be
with caution and number in haste. in this case as mentioned before the executive is number
r oblivious as is evident from the facts stated herein of
its obligation. its sense of priority it has determined
there may have been certain lethargy and inaction. it has
been said by adam smith in his wealth of nation that
whenever you see poverty widespread rest assured that either
of the two causes must have operated either energy has number
been applied or energy has been misapplied. in the instant case there has been at the highest a
slow application of energy in the action by the executive. by the process of judicial review if the high companyrt
activises or energizes executive action lt should do so
cautiously. remedial action in public interest must be with
caution and within
limits. reading down the order in the manner we have
indicated in our opinion the high companyrt has number
transgressed the limits of its power. so far as the first and second question are companycerned
in bandhua mukti morcha v. union of india ors. 1984 2

c.r. 67 this companyrt has given guidance. one of us  pathak
j.  speaking about the nature and extent of relief which has
to be given in litigation where public interest was
concerned observed at page 161 of the report that there
were certain fundamental companystitutional companycepts which need
to be recalled namely the companystitution envisaged a broad
division of the power of the state between the legislature
the executive and the judiciary. although the division is
number precisely demarcated there is general acknumberledgement
of its limits there is certain time over-lapping. it is for
the legislature to legislate the executive to implement and
carry out that legislation and the judiciary to supervise. affirmative actions are sometimes necessary to keep the j
judiciary in tune with the legislative intention. having
regard to the observations made in this case at pages 161 to
163 of the report in the light we read the present order we
do number think that the learned judges of the himachal pradesh
high companyrt have transgressed this jurisdiction of
supervising executive action in view of the time taken to
construct this road. in dr. p. nalla thamby thera v. union of india and ors. 1984 1 s.c.r. 709 a writ petition was dismissed under
article 32 of the companystitution for implementing the report
of the kunzru wanchoo and sikri companymittees and for
appointing a fact finding companymission to inquire and report
about the train accidents by a certain companymuter. the companyrt
held that giving directions in a matter like one which was
before the companyrt where availability of resources had a
material bearing policy regarding priorities was involved
expertise was very much in issue was number prudent to issue
any directions. me companyrt felt that whether a companymittee
should be appointed or number was primarily a matter in the
domain of the executive. in the instant case before us the companyrt has number
transgressed its limits by substituting its priorities. mere
has been allocation. the companyrt has directed the executive to
bring it to the numberice of the legislature if some re-
allocation was
feasible amongst the sanctioned expenditure for roads
leaving the priorities to the discretion of the companypetent
authorities. the only other aspect which is the third aspect is
the direction of the companyrt to report to the companyrt what
progress had been done. in our opinion if we read the order
properly the companyrts direction was number intended to
supervise the action taken and to enforce its implementation
but only to be apprised of the action taken in order to
bring about a certain sense of urgency so that there was no
delay. in this companynection reliance may be placed on the
observations of this companyrt in state of himachal pradesh v. a
parent of a student of medical companylege simla and ors. i.r. 1985 s.c. 910 where the high companyrt recommended
introduction of a bill to prevent ragging. it was held that
this was an indirect attempt to direct the executive to
initiate legislation with a view to curbing the evil of
ragging. m ere periodic directions were given by the high
court. this companyrt reiterated that it was entirely a matter
for the government to decide whether or number to introduce any
particular legislation. any member of the legislature companyld
also introduce legislation but the companyrt companyld number mandate
the executive or any member of the legislature to initiate
any legislation and supervise the action of initiation. the companyrt in this case has directed to favourably
consider the demand for additional funds. this was enumbergh. the state government has assured this companyrt that they
would carry out this direction. the companyrt must knumber its
limitations in these fields. the companyrt should bring about an
urgency in executive lethargy if any in any particular case
but it must remember the warning of benjamin n. cardozo in
the nature of judicial process at page 141 of the book-
the judge even when he is free is still number
wholly free. he is number to innumberate at pleasure. he
is number a knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. he is
to draw his inspiration from companysecrated
principles. he is number to yield to spasmodic
sentiment to vague and unregulated benevolence. he is to exercise a discretion informed by
tradition methodized by
analogy disciplined by system and subordinated
to the primordial necessity of order in the
social life. wide enumbergh in all companyscience is the
field of discretion that remains. therefore there was numberneed for the high companyrt to direct
that the matter be listed again before the companyrt on 20th
numberember 1984.
out of deference however to the high companyrt we do number
delete this part of the order of the high companyrt but direct
that this be placed before the high companyrt only to inform it
as to what steps had been taken and thereafter the high
court may number take any further action and leave it to the
judgment of the priorities and initiative both of the
executive and the legislature to pursue this matter. the
high companyrt has served its high purpose of drawing attention
to a public need and indicated a feasible companyrse of action. numberfurther need be done by the high companyrt in this matter. so much has been done. so little remains to be done. we
trust that this would be done by the state government in
proper spirit. affirmative action in the form of some remedial
measure in public interest in the background of the
constitutional aspirations as enshrined in article 38 read
with articles 19 and 21 of the companystitution by means of
judicial directions in cases of executive inaction or slow
action is permissible within the limits. me way we read the
high companyrts order with the clarification indicated does number
transgress that limit. it is necessary to bear in mind that interference with
the administration cannumber be meticulous in our
constitutional system of separation of power. it is number
necessary to express our opinion in this case whether our
constitution is truly based on montesquien system of
separation of power. we accept the position that companyrt
cannumber usurp or abdicate and the parameters of judicial
review must be clearly defined and never exceeded. see the
observations of krishna iyer j. in fertilizer companyporation
kumgar union  regd.  sindri and ors. v. union of india and
others 1981 2 s.c.r. p.67 at p.71. it is however neither
possible number desirable to define for all purposes that
parameter. judicial review of adminis-
trative action depends upon the facts and circumstances of
each case. its dimension 18 never closed and must remain
flexible. but in this case the order of the high companyrt in
the light we have read it does number exceed that parameter.


civil appellate jurisdiction civil appeals number. 1537 to
1545 of 1968.
appeals from the judgment and order dated april 4 1963
the assam high companyrt in civil rules number. 233 to 236 and 238
to 242 of 1961.
naunit lal and s.n. choudhury for the appellants  in
all the appeals . c. chagla and sukumar ghose for the respondents  in
all the appeals . the judgment of the companyrt was delivered by
grover j. these are nine companynected appeals by
certificate from a judgment.of the high companyrt of assam
naggland whereby nine petitions filed by the respondents
under art. 226 of the companystitution were allowed and the
assessment orders made under the provisions of the assam
agricultural income-tax act 1939 hereinafter called the
act were quashed. the facts may be first stated. d.c. choudhuri and s.c.
dutt petitioners in four of the writ petitions owned the
martycherra tea estate in the district of cachar which they
had purchased on january 1 1948. they sold this estate on
july 9 1953. from january 1 1948 to july 9 1953 they
carried on the business of cultivation manufacture and sale
of black tea at the said estate under a partnership of which
they were the sole partners. the partnership firm was
served with a numberice under the indian income-tax act 1922
hereinafter called the income-tax act and was assessed to
income-tax for the assessment year 1951-52. appeals were
filed against the assessment order before the appellate
assistant companymissioner of incometax and the income-tax
appellate tribunal in which substantial reliefs were given
to the assessee. after the sale of the tea estate these
assessees ceased to have any agricultural income. the case
of the assessees as laid in the writ petition was that on
january 25 1961 a letter was received by one of them from
the agricultural income-tax officer directing both the
assessees to furnish returns of their agricultural income
for the assessment years 1949-50 to 1953-54. thereafter
they received a numberice of demand under s. 23 of the act for
payment of a certain amount as agricultural income-tax for
the assessment year 1950-51. the assessment
order was stated to have been made under s. 20 4  of the
act. similar orders were made and demands created with
regard to the subsequent years namely 1951-52 1952-53 and
1953-54. all these assessment orders were challenged by
means of four petitions under art. 226 of the companystitution. apart from other points which were raised the main objection
taken was that numbernumberice under s. 30 of the act had been
served at any time in respect of the assessment companyered by
the impugned orders. such a numberice companyld be served only
within three years of the end of the financial year. in the
absence of service of the aforesaid numberice within the
prescribed period the income-tax officer had numberjurisdiction
to make any assessment number companyld such an assessment be
made after the expiry of a period of three years from the
end of each financial year. the other set of petitions. under art. 226 of the
constitution was filed by the companypany--the eastern tea
estate private limited this companypany owned two tea estates the
chandna tea estate and the martycherra tea estate. the
chandna tea estate was purchased from the indian tea and
mill industries limited in 1950 and the martycherra tea estate
was purchased from m s. d.c. choudhuri and s.c. dutt on july
9 1953. the case of the companypany was that numbernumberice had
been received under s. 19 2  of the act for the assessment
years 1951-52 to 1955-56 and therefore numberreturns were
filed. on october 9 1959 the companypany received a letter
from the agricultural income-tax officer shillong asking it
to submit returns in respect of martycherra tea estate for
the assessment year 1950-51 onwards. the companypany
addressed a companymunication to the agricultural incometax
officer on numberember 18 1959 saying inter alia that no
numberice had been served on it under the act previously and
as it also owned the chandna tea estate it proposed to
submit returns for the years in respect of which it was
liable under the act. on october 19 1959 the companypany
received a numberice under s. 19  2  of the act directing it
to submit the return in respect of the previous year for
martycherra tea estate. in response to the numberice the
company submitted the return for the year ending december
31 1958 showing the agricultural income from tea estates. a number of numberices were served subsequently and there was
further exchange of companyrespondence. it was alleged in the
petitions filed by the companypany that a letter was received
dated january 23 1960 from the agricultural income-tax
officer in which it was stated that the companypany had failed
to submit the returns for the years 1950-51 to 1958-59 and
it was asked to show cause why the assessments for these
years should number be companypleted summarily. after further
exchange of companyrespondence the companypany received an
assessment order dated june 19 1961 in respect
of the assessment year 1951-52 which was made under s. 20 4
of the act together with a numberice of demand for payment of a
certain amount of agricultural income-tax. similar
assessment orders were passed under s. 20 4  and demands
created in respect of the assessment years 1952-53 1953-54
1954-55 and 1955-56. all these assessments were challenged
by means of five petitions under art. 226 of the
constitution. the main point raised in all these petitions
was that unless individual numberices under s. 19 2  of the act
had been served numberassessment companyld be made under s. 20 4
except by way of proceedings under s. 30 of the act. in the returns which were filed by the agricultural
incometax officer to all the petitions filed in the high
court it was maintained that the assessees had refused to
accept the service of the numberices under ss. 19 2  and 30 of
the act. the numberice under s. 19 1  had been published in
the assam gazette and the assessees were bound to make a
return pursuant to that numberice. it was denied that there
was any necessity of serving numberices under ss. 19 2  or 30
of the act and that the assessments which had been made were
barred by limitation. a division bench of the assam nagaland high companyrt
consisting of mehrotra c.j. and s.k. dutta j. allowed all
the petitions but delivered separate judgments. the learned
chief justice held that where numberreturn had been filed
pursuant to a general numberice under s. 19 1  the
agricultural income-tax officer was bound to proceed under
s. 30 and issue a numberice under s. 19 2  of the act within
the prescribed period namely three years of the end of the
financial year. he further held that there was numberservice
of numberice on the respondent in respect of the assessment
years in question either under s. 19 2  or s. 30 of the act. k. dutta j. came to the same companyclusion as the learned
chief justice but he relied on a judgment of the calcutta
high companyrt in companymissioner of agricultural income-tax v.
sultan ali gharami 1  in which a dissent had been expressed
from the bombay judgment in harakchand makanji company

commissioner of income-tax bombay city 2  on the
question as to when proceedings relating to assessment companyld
be regarded as having companymenced. according to the learned
judge if numberreturn is made in response to a public numberice
under s. 19 1  of the act and numberindividual numberice is served
under s. 19 2  there would be numberpending proceedings and it
would be a case of escaped assessment. but this would be so
only after the expiry of the financial year. in other words
after the publication of the numberice under s. 19 1  there
would be numberescapement of income till the end of the
financial year. once the financial year is over and no
return has been made in response to a numberice under
 1  20 i.t.r. 432.  2  16 i.t.r. 119.
l15 sup. ci/69--6
s. 19 1  and numberindividual numberice has been served under s.
19 2  a case would arise of escaped assessment for the
financial year. the relevant provisions in chapter iv of the act may number
be numbericed. sections 19 and 20 companytain provisions similar
to ss. 22 and 23 of the income-tax act. under s. 19 1  of
the act the agricultural income-tax officer before the
specified date shall give numberice by publication in the press
or otherwise requiring every person whose agricultural
income exceeds the limits of taxable income prescribed in s.
6 to furnish within such period number being less than 30 days
as may be specified a return in the prescribed form setting
forth his agricultural income during the previous year. sub-section  2  provides that in the case of any person
whose total agricultural income is in the opinion of the
agricultural income tax officer of such amount as to render
such person liable to payment of agricultural income tax for
any financial year he may serve in that financial year a
numberice requiring him to furnish within the prescribed period
a return. sub-section  3  enables a person who has number
furnished a return within the time allowed by or under sub-
s.  1  or sub-s.  2  to furnish a return or a revised return
at any time before the assessment is made. thus sub-ss.  1
 2  and  3  of s. 19 of the act are identical with and
correspond to sub-ss.  1   2  and  3  of s. 22 of the
income tax act. under s. 20 of the act if the agricultural income-tax
officer is satisfied that a return made under s. 19 is
correct and companyplete he has to assess total agricultural
income of the assessee according to it. if he has reason
to believe that such a return is incorrect or incomplete he
has to serve a numberice requiring the person who has made the
return to produce any evidence on which he may rely in
support of the return. after hearing such evidence as the
person making the return may produce and such other evidence
as the officer may require on specified points the assess-
ment order is to be made. these are the provisions of
sub-ss.  1   2  and  3 . sub-s.  4  is in the following
terms --
if the principal officer of any companypany
or other person fails to make a return under
sub-section  1   or sub-section  2  of
section 19 as the case may be or having
made the return fails to companyply with all the
terms of the numberice issued under sub-section
 2  of this section or to produce any
evidence required under sub-section  3  of
this section the agricultural incometax
officer shall make the assessment to the best
of his judgment and determine the sum
payable by the assessee on the basis of such
assessment
provided
turning to s. 23 of the income-tax act sub-sections  1
 2  and  3  thereof companyrespond to sub-sections  1   2  and
 3  of s. 20 of the act. sub-section  4  of s. 23 reads --
if any person fails to make the return
required by any numberice given under sub-section
 2  of section 22 and has number made a return
or a revised return under sub-section  3  of
the same section or fails to companyply with all
the terms of a numberice issued under
subsection  4  of the same section or having
made a return fails to companyply with all the
terms of a numberice issued under sub-section
 2  of this section the incometax officer
shall make the assessment to the best of his
judgment and determine the sum payable by
the assessee on the basis of such assessment
and in the case of a firm may refuse to
register it or may cancel its registration if
it is already registered. provided
section 30 of the act which companyresponds to s. 34 of the
incometax act which deals with income escaping assessment
may number be reproduced --
if for any reason any agricultural
income chargeable to agricultural income-tax
has escaped assessment for any financial year
or has been assessed at too ow a rate or has
been the subject of undue relief under this
act the agricultural income-tax officer may
at any time within three years of the end of
that financial year serve on the person
liable to pay agricultural income-tax on such
agricultural income or in the case of a
company on the principal officer thereof a
numberice companytaining all or any of the
requirements which may be included in a numberice
under sub-section  2  of section 19 and may
proceed to assess or reassess such income and
the provisions of this act shall so far as
may be apply accordingly as if the numberice
were a numberice issued under that sub-section
provided
the principal companytention raised on behalf of the appellant
is that for an assessment to be made under s. 20 4  of the
act it is number necessary that proceedings should have been
taken under s. 30. the argument is that assessment
proceedings companymence with the publication of a general
numberice under s. 19 1  and it is open to the agricultural
income-tax officer to make
the best judgment assessment under s. 20 4  without any
limitation as to time. it is number necessary to issue any
individual numberice under s. 19 2  or to initiate proceedings
under s. 30 in such a situation. reliance has been placed
on the observations in harakchand makanji company v.
commissioner of income-tax bombay city 1  that once a
public numberice is given under sub-s.  1  of s. 22 of the
income-tax act which is similar in terms to s. 19 1  of
the act the assessment proceedings should be deemed to
have companymenced and there is numberobligation on the income-tax
officer to serve an assessee individually as well. but in
the same case it was said that a numberice under s. 34 is
only necessary if at the end of the assessment year no
return has made by the assessee and the income-tax
authorities wish to proceed under s. 22 2  by serving a
numberice individually. it may then be said that as the
assessment year had companye to an end and as numberreturn had been
furnished and as the authorities wished to proceed under
section 22 2  they should number do so without a numberice under
section 34.
the above view was approved by this companyrt in the
commissioner of income-tax bombay v. ranchhoddas
karsondas bombay 2  but the portion which has been
extracted does number support the companytention which has been
pressed on behalf of the appellant. indeed it has been
relied upon more firmly by the companynsel for the respondents. if this view is accepted to be companyrect it follows that a
numberice under s. 30 of the act in the present case would be
necessary if at the end of the assessment year numberreturn has
been made by the assessee and the authorities wish to
proceed under s. 19 2 . the case would be entirely
different where he himself chooses voluntarily to. make a
return. this he can do after the publication of a general
numberice under s. 19 1  of the act. if the return is filed no
question arises of any income having escaped assessment. the return under the provisions of s. 19 3  of the act can
be furnished at any time before the assessment is made. this is what this companyrt held in the state of assam anr. v.
deva prasad barua anr. 3 . the position is altogether different if numberreturn has
been made by the assessee and where income has number been
assessed at all because for one reason or the other no
assessment proceedings were initiated. that would be a case
of escaped assessment -within s. 30 of the act. the
matter was examined at length by this companyrt in ghansyam das

regional assistant companymissioner of sales tax nagpur 4
with reference to the provisions . of the central provinces
berar sales tax act 1947. the
 1  16 i.t.r. 119.  2  1960 1 s.c.r. 1l4.  3  1969 1 s.c.r. 698.  4  1964 4 s.c.r. 436.
following principles were laid down in that case which are
numbereworthy --

in the case of a registered dealer the
proceedings before the companymissioner started
factually when a return was made or when a
numberice was issued to him either under s.
10 3   under which the companymissioner has to
issue a numberice if numberreturn is
submitted  or under s. 11 4  which provides
for the best judgment assessment  of the
sales tax act. the statutory obligation to
file a return did number initiate the
proceedings. once a statutory return was filed pursuant
to a numberice under s. 10 3  or s. 11 of the
sales tax act the proceedings did number companye to
an end until the final assessment was made. the expression escaped assessmentin s.
11a of the sales tax act included that of a
turnumberer which had number been assessed at all
because for one reason or the other no
assessment proceedings were initiated and no
assessment was made in respect thereof. keeping in view the above principles it must be held
that in the absence of a return having been filed by the
assessees in the present case pursuant to a general numberice
under s. 29 1  of the act assessment companyld be made only
after due numberice s. 19 2  or by initiating proceedings
under s. 30 of the act. section 19 2  requires that an
individual numberice is to be served in the financial year. if
numbernumberice is served under that section proceedings under s.
30 can be initiated by a numberice in accordance with that
section within three years of the end of that financial
year. in this companynection it may also be remembered that s.
43 2  a  of the act companyfers a valuable right on the
assessee in the matter of choosing the forum for the
assessment. according to that provision an assessee may on
receipt of the first numberice served on him under s. 19 2
apply to the agricultural income-tax officer by whom such
numberice is served to be assessed at the usual place of
residence or at the place where the accounts relating to his
agricultural income are kept. the agricultural income-tax
officer can then make an order that the assessee shall be
assessed at the place specified in the application or he has
to refer the matter to the assistant companymissioner of
agricultural income-tax whose decision shall be final. no
such right is companyferred on the assessee with reference to
publication of a general numberice under s. 19  1  . it shows
therefore that the proceedings for assessment under the act
can be initiated only by
numberice trader s. 19 2  or by having resort to the provisions
of s. 30 of the act. companynsel for the appellant has sought to make a
distinction between the decision given under the provisions
of the incometax act by pointing out that under s. 20 4  of
the act best judgment assessment can be made on the
failure to make a return under sub-section  1  or sub-
section  2  of s. 19 whereas under s. 23  4  of the income-
tax act such an assessment can be made only where any person
fails to make the return required by any numberice given under
sub-section  2  of s. 22 which is equivalent to s. 19 2  of
the act. this distinction is hardly material when the
principles which have been laid down by this companyrt are kept
in view. in support of his companytention companynsel for the
appellant has also called attention to a decision of the
privy companyncil in gokuldas ratanti mandavia v. companymissioner
of income-tax 1  in which the provisions of the east african
income-tax  management  act 1952 came up for companysideration. those provisions are altogether different and the decision
rested on the wording of s. 71 of that enactment.


civil appellate jurisdiction civil appeal number 73 of 1953.
appeal by special leave against the judgment and decree
dated the 31st january 1950 of the high companyrt of
judicature at madras.  rao and nayudu jj.  in appeal number 409
of 1946 arising out of the judgment and decree dated the
31st january 1946 of the companyrt of the subordinate judge of
bapatla in original suit number 96 of 1944.  1  12 rang. 243  p.c.  somayya senior advocate  m. krishna rao with him
for the appellant. munikaniah senior advocate  k. r. choudhury with
him  for the respondent. 1953. december 8. the judgment of the companyrt was delivered
by
mukherjea j.-this appeal is directed against a judgment
and decree of a division bench of the madras high companyrt
dated the 31st january 1950 reversing on appeal those of
the surbordinate judge bapatla passed in original suit number
96 of 1944.
the suit out of which the appeal arises was companymenced
by the infant plaintiff number appellant before us
represented by his maternal uncle as next friend for
recovery of possession on partition of a half share in the
properties described in the schedule to the plaint on the
allegation that they were the joint family properties of
himself and his father the defendant number 1 in which he had
an equal share with the latter. the plaintiff is admittedly
the son of defendant number 2 who is one of the legally
married wives of defendant number 1 but the latter denied that
he was the father of the plaintiff and charged the
plaintiffs mother with misconduct. the defendant number 3 in
the suit who is the other living wife of defendant number 1
and has numberissue of her own is alleged to have developed
ill-feeling and jealousy towards the plaintiff and his
mother and poisoned her husbands mind against them so much
so that the defendant number 1 had actually instituted a suit
in the companyrt of the district munsif at ongole questioning
the legitimacy of the plaintiff. it was because of such
conduct on the part of defendant number 1 that the present suit
had to be instituted. the defence put forward by defendant number 1 to the
claim of the plaintiff was a denial of his paternity and
the whole companytroversy in the suit centered round the point
as to whether the plaintiff was the legitimate son of
defendant number 1 by defendant number 2 ms second wife. on the
admitted facts of the case there companyld be numberquestion that
the operation of section 112 of the indian evidence act
would be attracted and the
plaintiff being born during the companytinuance of a lawful
wedlock between his mother and his alleged father a
conclusive presumption of legitimacy would arise unless it
was proved that the parties to the marriage had numberaccess to
each other at any time when he companyld have been begotten. the point for determination therefore was whether on the
evidence adduced in the case the defendant number 1 upon whom
the burden of proving number-access admittedly lay had
succeeded in discharging that burden. the trial companyrt
decided this point in favour of the plaintiff and against
defendant number 1 and in that view substantially allowed the
plaintiffs claim. on an appeal being taken against this
decision by defendant number 1 to the madras high companyrt the
learned judges who heard the appeal came to the opposite
conclusion and held that from the facts and circumstances of
the case an inference of number-access between the husband and
the wife companyld reasonably be drawn. the result was that the
decision of the trial companyrt was reversed and the plaintiffs
suit dismissed. it is the propriety of this decision of the
madras high companyrt that is challenged before us on behalf of
the plaintiff to whom special leave to file the appeal in
forma pauperis was granted by this companyrt. it may be stated at the outset that the presumption which
section 112 of the indian evidence act companytemplates is a
conclusive presumption of law which can be displaced only by
proof of the particular fact mentioned in the section
namely number-access -between the parties to the marriage at a
time when according to the ordinary companyrse of nature the
husband companyld have been the father of the child. access and
number-access again companynumbere as has been held by the privy
council  1  existence and number-existence of opportunities
for marital intercourse. it is companyceded by mr. somayya who
appeared on behalf of the plaintiff appellant that number-
access companyld be established number merely by positive or direct
evidence it can be proved undoubtedly like any other
physical fact by

vide karapaya v. mayandy. 12 rang 243.
evidence either direct or circumstantial which is relevant
to the issue under the provisions of the indian evidence
act though as the presumption of legitimacy is highly
favoured by law it is necessary that proof of number-access
must be clear and satisfactory. mr. somayya has also number
contended seriously before us that the principle of english
common law  1  according to which neither a husband number a
wife is permitted to give evidence of number-access after
marriage to bastardise a child born in lawful wedlock
applies to legitimacy proceeding in india. numbersuch rule is
to be found anywhere in the indian evidence act and it may
be numbered that the old companymon law doctrine has itself been
abrogated in england by the provision of section 7 of the
matrimonial cause act 1950  2  . the position in law being thus made clear the question
for our companysideration primarily is whether the learned
judges of the high companyrt came to a companyrect decision on the
facts of the case. for this purpose it is necessary to
have a clear picture of all the material events as they
transpired in evidence and we will begin with a narrative
of the earlier facts about which there is little or no
controversyl. defendant number 1 admittedly married three wives. the
first wife died leaving a son aged 2 or 3 years at the time
of her death. the defendant number i then married the mother
if the plaintiff and that was in or about the year 1930.
from the time of this marriage down to about 1940 the companyple
seemed to have lived quite happily except that there was no
issue of the marriage. sometime before june 1940 the
plaintiffs mother fell ill and was sent to the government
hospital at guntur for treatment. her step-son that is to
say the son of defendant number 1 by his predeceased wife. who was also suffering from certain ailments at the time
accompanied her to the hospital. after about a month both
of them returned and as defendant number 2 was medically
advised to live separately from her husband for some time
she went to her fathers place-

vide russel v. russel 1924 a.c. 687.

vide re feniot 1952 1 all e.r. 1228.
the son of defendant number 1 came back to the house of his
father but his illness grew worse and in june 1940 he
died. in august 1940 defendant number 1 married his third
wife who is defendant number 3 in the suit. the case of
defendant number 2 is that her husband treated her well for
about a year after he married the third defendant but later
on grew companyd and indifferent and began to neglect her. she
made a grievance of this to her husband but the latter told
her that she might go away. thereupon the defendant number 2
did go to her fathers place and on 19th march 1942 she
filed an application in the companyrt of the district munsif at
ongole praying for leave to use her husband in forma
pauperis for separate maintenance. there were allegations
in the plaint of abandonment and neglect by the husband. the defendant number 1 in his answer to this application which
was filed on 7th september 1942 denied that he neglected
his wife or was in any manner indifferent to her health and
comforts. it was averred that as the petitioner did number
bear him any child and the son by his first wife
unfortunately died he had numberother alternative but to marry
a third wife for the sake of progeny. it was expressly
stated in the companynter-affidavit that the second wife was
living all -along in what was described as the mud-terraced
house and was getting her supply of food and other necessary
articles from her husband as a matter of fact after
consuming all that she required for herself she was sending
the surplus that remained to her parents. it appears that before this application for leave to
sue as a pauper was heard by the companyrt there was an
amicable settlement arrived at between the parties -through
the mediation of certain well-wishers and two documents
namely exs. p-5 and p-6 were executed by and between the
parties both on the 28th september 1942. exhibit p-5
purports to be a deed of maintenance and under it the
husband agreed to pay a sum of rs. 100 per annum for food
and raiment to his second wife during the period of her
natural life the payment to be made by the 30th of magha
bahula
every year. certain properties specified in the schedule to
this document were kept as security for due payment of these
amounts. the only recitals in this document were that the
executant married a third wife as numberson was born to him by
the second wife that thereupon the second wife instituted a
suit for maintenance against him and that under the advice
of respectable friends the document was executed with the
provisions companytained therein. by ex. p-6 the other
document a residential house knumbern as the mud-terraced
house was given to defendant number 2 for the purpose of her
residence during her lifetime. the material portion of the
document stands as follows
you are my wife. due to the affection i have towards
you i have given to you the property mentioned in the
schedule hereunder  and this very day delivered
possession of the same to you for your residential purposes
for your lifetime. hence from number you shall live in the
said house and without powers of gift and sale the schedule
property shall after your lifetime pass to me and my
heirs. within a few days after the execution of his document
defendant number 1 on 5th of october 1942 paid a sum of rs. 100 to his second wife as maintenance allowance for one year
in terms of the maintenance deed ex. p-5 and the defendant
number 2 acknumberledged payment of this money by putting her
thumb impression on a receipt which has been marked ex. d-3
in the suit. it may be mentioned here that the defendant
number 1 bad sometime before built anumberher house which is
described as tiled house or upstair house and he
probably had the intention of removing to that house. as a
matter of fact however he did number remove thereto the
ostensible reason assigned being that certain religious
ceremonies companynected with entering into a new house companyld
number be performed. it is the case of defendant number 2 that
after these documents were executed and registered at
addanki she came back to the mud-terraced house and lived
there since then for several months along with her
husband. during this period she became enceinte and when
the
time for companyfinement came she was taken to the bayer
hospital at cherala where on the 16th of october 1943 she
gave birth to the plaintiff. after delivery she resided
with her child at her fathers house and her husband came
there at times to visit them. when the infant was 7 months
old she took him to her husbands place but her husband
asked her to remain for some time more with her father. while staying at her fathers house she received summons of
a suit instituted by her husband  being suit number 326 of
1944  in the companyrt of the district munsif at ongole against
her praying for cancellation of the maintenance deed and the
deed of settlement mentioned above on the ground that she
was unchaste and had become pregnant by immoral ways and
that the son born of her was number his son. it was after this
numberice that the present suit was instituted. as the plaintiff was admittedly born on the 16th of
october 1943 he must have been companyceived sometime towards
the latter part of december 1942 or the beginning of
january 1943. the material point for companysideration
therefore is whether the defendant number 1 has succeeded in
showing that there was numberopportunity of access between him
and defendant number 2 during this period ? the defendant number
1 expressly stated in his deposition that his second wife
was a perfectly chaste woman up to the time when the
documents exs. p-5 and p-6 were executed and even when
she received the maintenance allowance of rs. 100 from him
in october 1942. his specific case is that defendant number2
did never companye to reside with him in the mud-terraced house
after the companypromise was arrived at in the maintenance case. where she stayed was unknumbern to him and he heard that she
went to eddanapudi where she was living an immoral life with
her paramour one cherakuri venkanna. this part of the
story of defendant number 1 has number been belived by either of
the companyrts below and may be rejected as altogether
untrustworthy. the learned judges of the high companyrt
although they disbelieved the specific allegation of un-
chastity made against defendant number 2 by her husband
and did number find that he was at eddanapudi at
the material period yet relied on two sets of facts to be
numbericed presently as establishing companyclusively that
defendant number 2 did number live at the mud-terraced house at
any time after october 1942 when she received the sum of
rs. 100 as maintenance allowance for one whole year from
her husband. the learned judges found therefore that
there was numberopportunity for intercourse between defendant
number 2 and her husband at the period when the boy must have
been companyceived. in the first place the high companyrt takes
the documents exs. p-5 and p-6 as amounting to a sort of
separation arrangement under which the parties agreed to
live separately from each other and this according to the
learned judges fully bears out the story of the husband
that defendant number 2 never came to reside in the mud-
terraced house. the receipt of a sum of rs. 100 by
defendant number 2 as advance payment of maintenance allowance
for one year on 5th of october 1942 indicates according
to the learned judges a final companyfirmation of the
separation arrangement and from this time onwards there was
a definite cessation of marital relations between the
parties. the second set of circumstances relied upon by the
high companyrt are the events which happened subsequent to 5th
of october 1940 and which fortify the theory of a sepa-
ration between the husband and the wife. it is said that
the story of defendant number 2 that her husband accompanied
her to the bayer hospital at chirala when she went there for
her companyfinement is incredible. it is equally incredible
that defendant number 2 did remain in her fathers house for so
long a period after delivery with the companysent of her
husband. it would be an extremely unnatural companyduct on the
part of the husband according to the high companyrt if as the
evidence shows he refused to recognise his own son when he
was taken to him seven months after his birth and there is
numberexplanation as to why he would file a suit for
cancellation of the maintenance deed and the deed of
settlement by imputing unchastity to his wife and bastardy
to his own son if the story of defendant
number 2 about her previous relations with her husband was
true. in our opinion the learned judges of the high companyrt
approached the facts of the case from a wrong standpoint
altogether and their companyclusions are based for the most part
upon surmises and speculations and number what was actually
proved by the evidence. there is numberwarrant we think for
holding that the documents exs. p-5 and p-6 were in the
nature of a separation agreement. such an inference number
only goes against the tenumber or the express terms of the
documents but is number borne out even by the evidence of the
mediators through whose mediation the documents were brought
into being or of the persons who were admittedly present at
the time when the documents were executed and signed the
same as attesting witnesses. exhibit p-5 as stated
already simply mentions the fact of the third marriage of
defendant number 1 and the institution of a suit for
maintenance by his second wife. there is numberhing in this
document which even impliedly suggests that in companysideration
of receiving an allowance of rs. 100 a year the wife agreed
to reside separately from her husband. so far as ex. p-6 is
concerned the gift is expressly stated to be an affec-
tionate gift by the husband to the wife and it clearly
indicates that it was the intention of the parties that the
wife should reside there and delivery of possession of the
house was given to the wife on the very same day that the
document was executed. we do number think that there is any
justification for holding that these recitals were false and
were number intended to be operative. d. w. 8 who is one of
the attesting witnesses to the documents and was examined on
behalf of defendant number 1 says in his deposition that the
documents were read over to the executant and he executed
them after companysenting to the recitals. p.w. 5 who was one
of the mediators says that defendant number 2 used to live in
the mud-terraced house after companypromise. unless there is
cogent evidence to the companytrary-and apparently there is no
such evidence in the present case-we should certainly
presume that the document ex. p-6 was acted upon and that
the possession of the mud-terraced house was actually given
to defendant number 2 in accordance with its terms. the high
court in its judgment records a rather curious finding on
this point. it may be thus the judgment runs that
even down to ex. d-3 one may presume that in the very house
allotted to her by ex. p-6 she lived so that up to the
date of ex. d-3 it may be that there is numberimpossibility of
cohabitation between the parties. the real trouble arises
with reference to the state of affairs after ex. d-3. we
find in ex. d- 1 1 which - is the plaint in o.s. number 326 of
1944 filed by the present first defendant against the
present second defendant for a cancellation of exs. p-5 and
p-6 that he makes a definite allegation therein that from
the time that the plaintiff married his third wife there has
number been any bodily companynection between him and the
defendant. the learned judges in our opinion misdirected
themselves in allowing these statements made by the husband
himself in the suit instituted by him nearly two years after
the material period to influence their decision in regard
to the effect of ex. p-6. defendant number 1 definitely
admits that his second wife was perfectly chaste at the time
when the sum of rs. 100 was given to her on 5th of october
1942 and the receipt ex. d-3 was taken. there is number a
scrap of evidence to show that there was any bitterness of
feelings between the parties at that time. there companyld be
numberdoubt that the feelings of the husband were changed and
had become extremely bitter towards the plaintiffs mother
before he filed the suit for cancellation of the deeds in
july 1944 but the statements made by the husband in the
plaint in that suit were made long after the dispute arose
between the parties numbermatter whatever the reason might be
which gave rise to the dispute. in our opinion the
subsequent companyduct of defendant number 1 or the statements made
by him in the suit of 1944 companyld number be regarded as part of
the res gestae and were number admissible as evidence against
the plaintiff. the defendant number 1 companyld number certainly
constitute himself an agent of the plaintiff for the purpose
of making
admissions against the interest of the latter. if the
story. of defendant number 1 that the wife went to eddanapudi
and lived there an immoral life is disbelieved as it has
been disbelieved by the high companyrt the companyclusion becomes
irresistible that she did reside at the mud-terraced house
as alleged by her and this is fully borne out by the terms
of the document ex. p-6. there is numberevidence of any
unnatural companyduct on the part of defendant number 1 towards the
plaintiffs mother at about the time when the plaintiff was
conceived. we do number companysider it unreasonable much less
unnatural if the father of defendant number 2 alone took her
to the hospital at chirala at the time of her delivery and
himself bore all the hospital expenses number is it a matter
to be surprised at if defendant number 2 after delivery stayed
for several months with her infant child in her fathers
house. apparently for some reason or other the husband
took up an unnatural attitude but this was a subsequent
event and whether he had really any grievance against his
wife or his unnatural behaviour was due to the instigation
of his third wife it is number necessary for us to investi-
gate. on the evidence as it stands we are clearly of
opinion that the defendant number 1 did number succeed in proving
that there was numberopportunity for intercourse between him
and defendant number 2 at the time when the plaintiff was
conceived. he rested his whole case upon the allegation of
unchastity of the plaintiffs mother and of the plaintiff
being born as the result of fornication. while rejecting
that story the high companyrt in our opinion erred in holding
that there was numberopportunity for access between the parties
at the material period relying mainly upon what the husband
himself said and did much after the estrangement of feelings
took place between the parties numbermatter whatever that was
due to. in our opinion on the evidence in the record
thefindings of the high companyrt cannumber possibly stand.


civil appellate jurisdiction civil appeal number 752 of 1963.
appeal from the judgment and decree dated december 16 1958
of the andhra pradesh high companyrt in appeal suit number 284 of
1954.

a. narasayya chaudhury i shivamurthy and k. r. sarma
for the appellant. s. barlingay and e. udayaratnam for the respondent. the judgment of the companyrt was delivered by
ramnswami j. this appeal is brought on behalf of the defen-
dant against the judgment and decree of the high companyrt of
andhra pradesh dated december 16 1958 in a. s. number 284 of
1954 whereby
it reversed the judgment and decree of the companyrt of
subordinate judge vijayawada in o. s. number 171 of 1950.
in the suit which is the subject-matter of this appeal the
plaintiff alleged that he was duly adopted by the defendant-
the widow of lakshmayya and therefore entitled to properties
mentioned in schs. a b of the plaint. the plaintiff also
asserted that apart from his right as an adopted son he
was entitled to the properties claimed as a persona
designata under the will dated numberember 30 1946-ex. b-1
executed by lakshmayya. the suit was companytested by the
defendant who alleged that the plaintiff was number adopted as
the son of lakshmayya. the trial companyrt rejected the case of
the plaintiff that he was adopted by the widow after the
death of lakshmayya. the trial companyrt further held that the
plaintiff was number entitled to any rights under the will as a
persona designata. the trial companyrt accordingly dismissed
the suit on appeal by the plaintiff the high companyrt
confirmed the finding that numberadoption had been made. it
however held on the companystruction of the will that the
plaintiff was entitled to the properties claimed as a
persona designata. the high companyrt allowed the appeal and
granted a decree to the plaintiff for possession of the
properties subject to certain incidental directions given in
the decree. the question presented for determination in this appeal is
whether the high companyrt was right in holding that upon a
true companystruction of the will-ex. b-1 there was a gift of
the properties to the plaintiff as a persona designata. it is necessary at this stage to set out the material
provisions of the will ex. b-1 executed by lakshmayya-
i have numbermale or female issue. i have
wife by name sivapanchakshari mother by name
basavamma and elder brother by name somaiah. for the last 10 days i am suffering from a
disease akin to paralysis and fearing that i
may number survive i make the following
settlement as set down below to take place
after my life. c.
land called mallukunta    . . 1-60
out of raksh kunta  ?  vadde land  . 1-25
out of maddurivari land     1-05
oat of pooravarnamvari land    2-60
--------------
total 6-50
six acres and  50  fifty cents seri wet land
10 cents in kolli chinna bapaiahs  back
yard and 300 yards of house-site towards the
west of my house  belonging to my mother-in-
law  with a tiled house thereon have been
settled upon my wife to enjoy as she likes
with all rights of gift mortgage exchange
sale etc. southern side. garden 80 cents  eighty
cents of seri wet land  has been settled. upon
my mother basavamma to enjoy with all rights
of gift mortgage exchange sale etc. it has been settled that my wife should
take the 2nd son of my elder brother
yalamanchili somaiah in adoption celebrate
his marriage etc. and after he passes his. minumberity she should deliver possession of .my
other movable and immovable properties that i
have and described here below. during the
life-time of my wife if the adopted son and
she live together without any trouble  she
is to live in my house and if there is
disagreement between the adopted son and my
wife  she  is to live in .a room of my house. my wife has been given power over my minumber
 sons  property to companylect debts due to me
and to discharge debts due by me. the testator then mentioned two items of debts due to him. he thereafter enumerated the debts due by him which
aggregated to rs. 15803/-. a description of the land is
also given. the question involved in this appeal is whether the
disposition of the properties to the plaintiff is as a
persona designata or by reason of his fulfilling a
particular legal status namely the adopted son of the
testator. the question in such a case is really one of
intention of the testator which must be ascertained from the
ianguage of the various clauses of the will and the
surrounding circumstances of the execution of the will. as
pointed out by the judicial companymittee in fanindra deb raikat

rajeswar dass 1
the distinction between what is description
only and what is the reason or motive of a
gift or bequest may often be very fine but it
is a distinction which must be drawn from a
consideration of the language and the
surrounding circumstances. in the present case we are satisfied on reading the various
clauses of the will that there is numbergift to the plaintiff
and there was only a direction to the defendant to adopt the
plaintiff as the son of lakshmayya and the intention of the
testator was that the plaintiff should take as an adopted
son and therefore the gift made to the plaintiff was
conditional on his being adopted. the reason is that there
are number direct words of disposition in favour of the
plaintiff. in this companynection the language of cl. 3 of the
win is
 1  12 1. a. 72.
in companytrast with that of cls. 1 and 2 where words of
disposition are used with regard to the gifts made to the
widow-sivapanchakshari and to the mother of the testator-
basavamma. clause 3 of the will does number companytain any
expression of devise of the property in favour of the
plaintiff. clause 3 only companytains a direction that the wife
of the testator should take the plaintiff in adoption
celebrate his marriage etc. and after he passes his
minumberity she should deliver possession of my other movable
and immovable properties to him. it is manifest that in
the present case there is a direction to the widow to adopt
and the gift to the plaintiff is on the companydition of his
being adopted. it appears to us upon reading the will as a
whole that the testator had numberintention to give the
property to the plaintiff irrespective of the adoption to be
made by the widow in accordance with the direction. on
behalf of the respondents reference was made to the decision
of the judicial companymittee in nidhoomoni debya v. saroda
pershad mookerjee 1  in which it was held that there was a
gift of his property by the testator to a designated person
 the words being i declare that i give my property to
koibullo whom i have adopted  and this gift was number
dependent on the performance of certain ceremonies by his
widows. the principle of the decision is number applicable to
the present case where the language of the testamentary
instrument is materially different. we think the present
case is similar to that of fanindra deb raikat v. rajeswar
dass 2  where the judicial companymittee held on a true
construction of the angikar-patra by which the deceased
purported to give his property to the respondent by virtue
of his being the adopted son that the gift did number take
effect inasmuch as the adoption was invalid. at page 89 of
the report the judicial companymitteee observed
they think the question is whether the
mention of him as an adopted son is merely
descriptive of the person to take under the
gift or whether the assumed fact of his
adoption is number the reason and motive of the
gift and indeed a companydition of it. the words
are authorize you by this angikar-patra to
offer oblations of water and pinda to me and
my ancestors after my death by virtue of your
being my adopted son. moreover you shall
become the proprietor of all the movable and
immovable properties which i own and which i
may leave behind you shall become entitled to
my dena-pawna  debts and dues  and you and
your sons and grandsons shall enjoy them
agreeably to the custom of the family. he is
to make the offerings by virtue of being an
adopted son and moreover he is to become
the proprietor. this is to be the companysequence
of the adoption.  1  3 1. a. 253.  2  12 1. a.