mahajan j.

petition number 166 of 1951.

this is a petition under article 32 of the companystitution of india by shri visheswar rao zamindar and proprietor of ahiri zamindari an estate as defined in section 2  3  of the central provinces land revenue act ii of 1917 and situated in tehsil sironcha district chanda  madhya pradesh  for the enforcement of his fundamental right to property under article 31 1  of the companystitution by the issue of an appropriate writ or a direction to the respondent state restraining it from disturbing his possession of the estate and eighty malguzari villages situate in the garchiroli tehsil of the same district. the petitioner and his ancestors have been owing and enjoying these properties in full proprietary right for several generations past. on the 5th april 1950 the madhya pradesh legislative assembly enacted an act called the madhya pradesh abolition of proprietary right act. the act received the assent of the president of india on the 22nd january 1951 and was published in the madhya pradesh gazette on the 26th january 1951 as act i of 1951. by a numberification in a gazette extraordinary issued on the 27th january 1951 the madhya pradesh government fixed 31st march 1951 as the date of vesting of the estates under section 3 of the act. the petitioner thus was to lose his estate and lands on the 31st march 1951. on the 9th march 1951 i.e. before the vesting date he presented the present application to this companyrt for the issue of appropriate writs against the government prohibiting it from taking possession of his properties. it was alleged that the madhya pradesh act i of 1951 was unconstitutional and void and infringed the fundamental rights of the petitioner in a variety of ways. for a proper appreciation of the ground on which the validity of the act is being challenged it is necessary to set out the relevant provisions of the act and to state the facts which led to this enactment. madhya pradesh is a companyposite state companyprising the central provisions berar and the merged territories. by an agreement of merger made between the rules of states and the dominion of in india dated the 15th december 1947 certain territories which at one time were under the indian states agency and were held by these rulers were integrated with the dominion. the intergration actually took place on the 1st january 1948. on the 1st august 1949 the states were merged in the madhya pradesh. there were in all 106 estates in madhya pradesh as defined in section 2  3  of act i of 1951 and held by zamindars. most of the lands are owned by malguzars of mahals in the status of malkan cabza. the land system prevailing in madhya pradesh is malguzari  except in certain areas where the ryotwari system is in vogue  the malguzar being an intermediary between the state and the tiller. land is also held on a variety of subordinate tenures by absolute occupancy tenants occupancy tenants ryots thikedars mafidars ilaqadars etc. land revenue in madhya pradesh was last assessed under the central provinces land revenue act ii of 1917. the estate holders pay land revenue on the lands companyprised in the estates at a companycession rate. the payment is technically called tekoli in 1939 there was an ad hoc increase in the amount of tekoli by the central provinces revision of land revenue estates act i of 1939.

on the 3rd september 1946 the central provinces and bear legislative assembly passed a resolution for the elimination of intermediaries between the state and the peasant. soon after passing of this resolution several laws were enacted it is said with a view to achieve this result the impugned act being the last of the series. in 1947 the central provinces land revenue estates act xxv of 1947 was enacted. the revenue assessment viz. tekoli on the estates was we are told enhanced in some places from thirty to fifty per cent of the full jama and in others from forty to sixty per cent. in the same year was enacted the central provinces land revenue revision mahals act xxvi of 1947. the land assessment on malguzari villages was it is alleged raised to 75 per cent. from 45 to 50 per cent. of malguzari assets. this was done without recourse to a settlement. in 1948 came the central provinces and berar revocation of exemptions act xxxvii of 1948 making persons exempted from payment of land revenue liable for it. this legislation it is urged resulted in the reduction of the net income of the proprietors to a large extent. on the 11th october 1949 the impugned act was introduced in the madhya pradesh assembly. it was referred to a select companymittee on the 15th october 1949 the select companymittee reported on the 9th march 1950 the report was published on the 17th march 1950 and was taken into companysideration on the 29th march 1950 by the assembly. on the 30th march 1950 the opposition moved for the circulation of the bill. the circulation motion was negatived on the 3rd april 1950 and the bill was discussed clause by clause were passed between the 3rd of april of the 5th of april. on the 5th april. on the 5th april 1950 the member in charge of the bill moved as follows -

speaker sir i number move that the central provinces berar abolition of proprietary rights  estates mahals alienated lands  bill 1949  number 64 of 1949  as companysidered by the house be passed into law. the honble the speaker said motion moved that the central provisions berar abolition of proprietary rights  estates mahals alienated lands  bill 1949  number 64 of 1949  as companysidered by the house be passed into law

a number of speeches were made at the third reading stage. the opposition was in a hopeless minumberity. the trend of the speeches was of a laudatory character each member hailing the bill as a peace of great reform in the madhya pradesh land system. numbermotion of a dilatory nature was tabled and as a matter of fact there was numberopposition whatsoever to the passing of the bill. some members expressed the opinion that the provisions of the act did number go far enumbergh others thought that the provisions as to companypensation should have been more liberal but there was numbere who was for rejecting the bill as it stood. the report of the proceedings of the 5th april 1950 does number companytain the numbere that the motion that the bill be passed into law was carried

the omission of this numbere in the proceedings of the proceedings of the legislature has furnished a basis for the argument that the bill was never passed into law. the proceedings were printed on the 21st june 1950 and were signed by the speaker on the 1st october 1950. the original bill that was submitted to the president for his assent was printed on the 29th april 1950 and it bears on it the certificate of the speaker dated the 10th may 1950 stating that the bill was duly passed by the legislature on the 5th april 1950. this certificate was signed by the speaker a companysiderable time ahead of his signing the proceedings. the act as already stated received the assent of the president on the 22nd january 1951 and was published in the madhya pradesh gazette on the 26th january 1951 as madhya pradesh act i of 1951.

against the companystitutionality of this act a number of petitioners were made in the high companyrt of nagpur but they were all dismissed by that companyrt on the 9th april while this petition along with some others was pending in this companyrt. the preamble of the act is in these terms -
an act to provide for the acquisition of the rights of proprietors in estates mahals alienated villages and alienated lands in madhya pradesh and to make provision for other matters companynected there with. the legislation clearly falls within entry 36 of list ii of the seventh schedule of the companystitution. the madhya pradesh legislature had therefore undoubted companypetence to enact it. the act is divided into eleven chapters and three schedules. chapter ii deals with the vesting of proprietary rights in the state and states the companysequences of the vesting. section 3 is in these terms -
save as other wise provided in this act on and from a date to be specified by a numberification by the state government in this behalf all proprietary rights in an estate mahal alienated village or alienated land as the case may be in the area specified in the numberification vesting in a proprietor of such estate mahal alienated village alienated land or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the state for the purposes of the state free of all encumbrances

section 4 provides that after the publication of the numberification under section 3 all rights titles and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land  cultivable or barren  grass land scrub jungle forest trees fishes wells tanks ponds water-channels ferries pathways villages sites hats bazars and meals and in all subsoil including rights if any in mines and minerals whether being worked or number shall cease and be vested in the state for purposes of the state free of all encumbrances but that the proprietor shall companytinue to retain the possession of his homestead home-farm land and in the central provisions also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting. the proprietor is entitled to recover any sums which became due to him before the date of vesting by virtue of his proprietor rights. all open enclosures used for agricultural or domestic purposes all buildings places of worship wells situated in and trees standings on lands included in such enclosures or house sites etc. companytinue to remain in possession of proprietor and are to be settled with him by the state government on such terms and companyditions as it may determine. similarly certain private wells trees tanks and groves companytinue to remain in possession of proprietor or other person who may be interested in them. chapter iii deals with the assessment of companypensation. it is provided in section 8 that the state government shall pay companypensation to the proprietor in accordance with the rules companytained in schedule i. besides the amount so determined government has to pay companypensation for any amount spent on the companystruction of a tank or well used for agricultural purposes where such tank or well vests in the state government. in addition to all these amounts the state government has pay companypensation for lands within the area of a municipality or cantonment in accordance with the rules companytained in schedule ii. the companypensation for divestment of proprietary rights becomes due from the date vesting and it is enacted that it shall carry interest at the rate of two and a half per cent. per annum from the date of vestings to the date of payment. section 9 provides as follows -

the companypensation payable under section 8 may in accordance with the rules made in this behalf be paid in one or more of the following modes namely -

in cash in full or in annual instalments number exceeding thirty

in bonds either negotiable or number negotiable carrying interest at the rate specified in sub-section  4  of section 8 and of guaranteed face value maturing within a specified period number exceeding thirty years. the other sections in this chapter deal with interim payment and appointment of companypensation officers and lay down the procedure for the determination of companypensation. schedule i provides that the amount of companypensation in the central provinces and in berar shall be ten times the net income determined in accordance with the rules mentioned in the schedule. in merged territories the companypensation is payable on a sliding scale varying from two times to ten times the net income. schedule ii lays down the measure of companypensation on a scale varying from five to fifteen times the assessment on the land as specified in the schedule. section 2 of the schedule i provides for the calculation of the gross income by adding the amount of income received by a proprietor from the aggregate of the rents from the tenants as recorded in the jamabandi for the previous agricultural year the siwai income that is income from various sources such as jalkar bankar phalkar hats bazars melas grazing and village forest calculated at two times the income recorded in the current settlement of 1923 and the companysent money on transfer of tenancy lands-the average of transactions recorded in the village papers for ten years preceding the agricultural year in which the date of vesting falls. the schedule also provides the method of determination of the gross income of a mahal as well as of an alienated village or alienated land separately. it also provides for the determination of this income in the case of mines and forests. the method suggested for assessing the net income is that out of the gross income the following items have to be deducted i.e. assessed land revenue sums payable during the previous agricultural year on account of cesses and local rates the average of income-tax paid in respect of income received from big forests during the period of thirty agricultural years preceding the agricultural year in which the relevant date falls and companyt of management varying from 8 to 15 per cent. of the gross annual income on incomes varying from rs. 2000 to rs. 15000. it is further provided that number withstanding anything companytained in sub-rule  2  the net incomes shall in case be reduced to less than five per cent. of the gross income. chapter iv deals with certain incidental matters in respect of the determination of the debts of proprietors. its provisions are analgulus to the provisions of debt companyciliation or relief of indebtedness act. it is provided in chapter v how the actual amount of companypensation is to be determined and paid. chapter vi deals with that part of madhya pradesh which is defined as central provinces in the act. it is provided herein that a proprietor who has been divested of his estate will have malik-makbuza rights in his homenfarm lands. absolute occupancy tenants and occupancy tenants can also acquire malik - makbuza rights. provision is made for reservation of grazing lands and for the companylection of land revenue. similar provisions are made in chapter vii in respect of management and tenures of land in the merged territories. chapter viii deals with management and tenures of lands in berar. separate provision has been made for the determination of companypensation payable to lessees of mines and minerals. under the provisions of section 218 of the central provinces land revenue act and section 44 of the berar land revenue companye there is a presumption that all mines and minerals belong to the state and the proprietary rights in them companyld be granted by the state to any person. wherever a right of minerals has been so assigned provision has been made regarding its acquisition and the companysequences as resulting from such acquisition. the act provides for the giving of rehabilitation grant to expropriated proprietors within a certain range provided for in schedule iii. the last chapter in the act deals with miscellaneous matters including the power of making rules. the main purpose of the act is to bring the actual tillers of the soil in direct companytract with the state by the elimination of intermediary holders. in short the act aims at companyverting malguzari into ryotwari land system. in also aims at giving to the gram panchayats the management of companymon lands freed from the grip of proprietors and companytemplates the establishment of self-government for the villages. the provisions of the act in respect of payment of companypensation though they do number in any way provide for an equivalent in money of the property taken and in that sense may number be adequate cannumber be called illusory. this act is a definite improvement on the bihar act it leaves the arrears of rents due in the hands of the proprietors and does number operate artificially to reduce the net income by any device. it also provides that in numbercase the net income should be reduced below five per cent of the gross income. the result is that in every case some amount of money becomes payable by the state by way of companypensation to the proprietor and in numbercase does the companypensation work into a negative sum or to a mere zero or a minus figure. in other respects the provisions of the act in regard to companypensation follow the pattern which is companymon to all zamindari legislation which is to inflate the amount of expenditure and deflate the actual income. the siwai income from jalkar bankar etc. and from village forests is calculated at two times the siwai income recorded in the settlement made in 1923. this is act was passed in 1951. the siwai income recorded in the year 1923 is appreciably less than the actual income of the properties from these sources in 1951. similarly the income from companysent money has to be calculated by taking the average income for ten years preceding the date of vesting and number the actual income as in the case of rent realized during the previous agricultural year. the expenditure has been inflated by taking in respect of the big forests the average income-tax paid during the period of thirty agricultural years. numberagricultural income-tax existed during most of this period. it only came into existence recently. the companyt of management has been calculated at a flat rate of eight to fifteen per cent. there can therefore be numberdoubt that the principles laid down for determination of companypensation cannumber be called equitable and they do number provided for payment of just companypensation to the expropriated proprietor. the petitioners case is that under the formula stated in the act a companypensation of 25 lakhs which would be due to him on he basis of the value of property taken has been reduced to a sum of rs. 65000 and is payable in thirty unspecified instalments and therefore it is purely numberinal and illusory. this figure of rs. 65000 is arrived at by the following process -

gross income from rents. rs. 55000

siwai income  rs. 80500
actually  according to the affidavit the petitioner
was realizing 465000 from this source . total  135000
deductions permissible under the act are the following -

revenue  45000

income-tax on 30 years
average  66600

cost of management  21000
total  -------
132600
net income  2400

ten times net income would be rs. 24000 but as the net income cannumber be reduced below five per cent. of the gross income which companyes to rs. 6500 companypensation payable is rs. 65000 while the yearly income of the petitioner was in the neighbourhood of rs. 565000 and the market value of his property is 25 lakhs. the first and the main objection to the validity of the act taken by the learned companynsel is that the bill was never passed into law. as already indicated this objection is founded on the omission from the proceedings of the madhya pradesh legislative assembly dated the 5th april 1950 of a statement to the effect that the bill was put to the house by the speaker and was passed by it. reference was made to rules 2022 34 and 115 of the rules regulating the procedure of the legislature framed under the government of india act 1935 in the year 1936 which provides as follows -

20  1 . a matter requiring the decision of the assembly shall be decided by means of a question put by the speaker on a motion made by a member

after a motion has been made the speaker shall read the motion for the companysideration of the assembly. 34  1  votes may be taken by voices or division and shall be taken by division if any member so desires. the speaker shall determine the method of taking votes by division. the result of a division shall be annumbernced by the speaker and shall number be challenged. 115  1  the secretary shall cause to be prepared a full report of the proceedings of the assembly at each of its meetings and publish it as soon as practicable. one impression of this printed report shall be submitted to the speaker for his companyfirmation and signature and when signed shall companystitute the authentic record of the proceedings of the assembly. it was urged that the authentic report of the proceedings of the assembly was companyclusive on the point that the bill was number put to the assembly by means of a question and was number voted upon and hence it companyld number be said to have been passed by the legislature. it was said that even if there was numberopen opposition to the passing of the bill it was possible that if it was put to the assembly it might have rejected it. as already pointed out the proceedings were signed by the speaker on the 1st october 1950 while the certificate that the bill was passed was recorded by him on the original bill when it was submitted to the president for his assent on the 10th may 1950. the certificate of the speaker is companyclusive on the point that the bill was passed by the legislature  vide craies statute law 4th edn. p. 36 . it seems to me that by an oversight it was number recorded in the proceedings that the mission was put to and passed by the house and the speaker while signing the proceedings six months after the event failed to numberice the error. there can be numberabout that the sense of the house on the 5th april 1950 was for passing the bill and there was numberone present who was for rejecting it. the motion before the house that the bill be passed. the speaker companyld number possibly have appended a certificate on a bill that it was passed by the house if it had number been so passed. there are numbergrounds whatever for doubting the companyrectness of his certificate. in my opinion the companytention raised that the bill was number passed into law fails and must be rejected. next it is companytended that articles 31-a and 31-b have numberapplication to this bill as it never became law by following the procedure prescribed in the companystitution and that those articles have only application to a bill that had becomes an act. the legislature of madhya pradesh companysists of the governumber and the legislative assembly. it was said that even if the bill was passed by the legislative assembly it was number assented to by the governumber but was straightway sent to the president and that without the assent of the governumber the bill companyld number become law despite the fact that it was assented to by the president and it was pointed out that sub-clause  3  of article 31 of the companystitution speaks of law being reserved for the companysideration of president and number merely a bill. this argument in my opinion has number much force having regard to the terms and scope of article 200. the governumber under that article companyld assent to a bill or companyld reserve it for the companysideration of the president at his option. the governumber being empowered to reserve the bill for the companysideration of the president and this having been done it was for the president either to assent to the bill or to withhold his assent. the president having given his assent the bill must be held to have been passed into law. it does number seem to have been intended that the governumber should give his assent to the bill and make it a full-fledged law and then reserve it for the presidents companysideration so that it may have effect. mr. somayya pressed the point that the president companyld number perform both his functions under article 200 and article 31 4  companycerning this bill at one and the same time that first the procedure laid down in article 200 for the passing of the bill in to law should been followed i.e. the governumber should have either assented to the bill or should have reserved it for the companysideration of the president and if it was so reserved the president should then have given his assent and the bill would then become law that after the bill had become law the governumber should again have reserved this bill for the companysideration of the president as required by the provisions of article 31 3  in order to make it effective law against the provision of article 31 2  and that if the president then gave his assent the law so assented to companyld number be called in question in a companyrt of law. it was said that only in case where this double procedure is followed that it companyld be said that the president had satisfied himself that the law did number companytravene the provisions of article 31 2 . in my opinion the argument is fallacious. it would be a meaningless formality for the president to give his assent to the same bill twice over. i cannumber see why the president cannumber perform both the duties entrusted to him by articles 200 and 31 3  and  4  at one the same time. he is number disabled under the companystitution from applying his mind to such a bill once and for all to see whether it has to be passed into law and whether it fulfils the requirements of article 31 2 . the presidents assent therefore to the bill attracts the application of articles 31-a and 31-b to it and deprives persons affected by it of the rights guaranteed in part iii of the companystitution. the provisions of article 31 4  support the view of the learned attorney-general that what has to be sent to the president is the bill as passed by the legislature and number the bill after it has been assented to by the governumber. the article reads thus -
if any bill pending at the companymencement of this companystitution in the legislature of a state has after it has been passed by such legislature been reversed for the companysideration of the president and has received his assent them numberwithstanding anything in this companystitution the law so assented to shall number be called in question in any companyrt on the ground that it companytravenes the provisions of clause  2 . in this companytext the word legislature means the house or houses of legislature and does number include the governumber with in its ambit. this word has number the same meaning in all the articles. in some articles it means the governumber as well as the houses of legislature while in a number of other articles it only means the house or houses of legislature. article 31 4  means that if any bill companytravening the provisions of clause  2  of article 31 is passed by the house or houses of legislature but is reserved for he companysideration of the president and receives his assent then it shall become law number open to any objection on the ground of such companytravention. next it was companytended that the obligation to pay companypensation was implicit in the legislative power companytained in entry 36 of list ii and that the act was unconstitutional as it had provided for acquisition of zamindaris without payment of companypensation the provisions relating to it being illusory. this companytention fails for the reasons given in my judgment in the bihar case. moreover the companypensation provided for in the impugned act cannumber be dubbed as illusory. all that can be said is that it is grossly inadequate and it is number the equivalent of the value of the property acquired but this issue is number justiciable in view of the provisions of article 31 4 . this bill was pending at the companymencement of the companystitution it was reserved for the companysideration of the president and the president gave his assent to it. the companyditions for the application of article 31 4  thus stand fulfilled. besides the obstacle of article 31 4 . two further hurdles viz. of articles 31-a and 31-b introduced by the amendments to the companystitution stand in the way of the petitioner and bar an enquiry into the question of the quantum of companypensation. the companytention that there is numberpublic purpose behind the impugned act has also to be repelled on the same reasoning as given by me in the bihar case. the purpose behind the act is to establish direct companytact between tillers of the soil and the government and to eliminate the intermediaries as in the view of the government this is for the welfare of the society as a whole. it is also the purpose of the act to companyfer malik maqbuza status on occupancy tenants and improve their present position and to vest management of village affairs and cultivation in a democratic village body. it is too late in the day to companytend that reform in this directions is number for general public benefit. the next argument of mr. somayya that the act is a fraud on the companystitution in that in legislating under entry 42 of list iii it has legislated for number-payment of companypensation has also to be repelled for the reasons given in the bihar case. under the provisions of this act companypensation can in numbercase work out into a mere numberhing. on the other hand in every case some amount of companypensation is payable and in the majority of cases it is also number inadequate mr. somayya companytended that payment of rs. 65000 as companypensation to his client for property worth twenty-five lakhs of rupees was purely illusory. the assessment of value by the petitioner cannumber be taken at its full value. it cannumber at any rate be held that legislation which provides for the payment of a sum of rs. 65000 provides for numbercompensation. the amount of instalments if payment is to be in instalments is bound to be fixed by the rules made under the statute and in case the rules are so made that they amount to an abuse of the exercise of that power they can always be challenged on that ground. the argument that the act is bad inasmuch as it delegates essential legislative power to the executive is negatived for the reasons given in the bihar case. a point was raised that the companystitutional amendments in articles 31-a and 31-b companyld number affect the petitioners guaranteed rights companytained in part iii of the companystitution in so far as the eighty malguzari villages were companycerned because those mahals did number fall within the ambit of the word estate as defined in article 31-a. in sub-clause  2   a  the definition is in these terms -
the expression estate shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include any jagir inam or muafi or other similar grant. section 2  3  of act ii of 1917 c. p. land revenue act defines the expression estate thus -
an estate as declared by the state government. the learned advocate - general companyceded that these villages are number within the ambit of this definition but he companytended that they are within the scope of the definition of the expression given in article 31-a as mahals in central provisions are local equivalents of the expression estate though number so declared by the act. there is numberhing on the record to support this companytention. the companytention that those eighty mahals are number an estateand are thus excluded from the reach of article 31-a does number however very much advances the petitioners case because the hurdles created in his way by articles 31-b and 31 4  stand in spite of the circumstances that article 31-a has numberapplication. it was companytended that article 31-b was merely illustrative of the rule stated in article 31-a and if article 31-a had numberapplication that article also should be left out of companysideration. reference was made to the decision of the privy companyncil in king emperor v. sibnath banerjee   1945  l.r. 72 i.a. 241 1945 f.c.r. 195  on the companystruction of sub-sections  1  and  2  of section 2 of the defence of india act. the material portion of section 2 companysidered in that case runs thus -

 1 . the central government may be numberification in the official gazette make such rules as appear to it to be necessary or expedient for securing the defence of birth india the public safety the maintenance of public order or the efficient prosecution of war or for maintaining supplies and services essential to the life of the companymunity.  2  without prejudice to the generality of the powers companyferred by sub-section  1  the rule may provide for or may empower any authority to make orders providing for all any of the following matters namely

their lordships made the following observations about the meaning to be given to the language of sub-section  2  --
the function of sub - section  2  is merely an illustrative one the rule-making power is companyferred by sub-section  1  and the rules which are referred to in the opening sentence of sub-section  2  are the rules which are authorised by and made under sub-section  1  the provisions of sub-section  2  are number restrictive of sub-section  1  as indeed is expressly stated by the words without prejudice to the generality of the power companyferred by sub-section  1 . article 31-b is in these terms -

without prejudice to the generality of the provisions companytinued in article in article 31-a numbere of the acts and regulations specified in the ninth schedule number any of the provisions thereof shall be deemed to be void on the ground that such act regulation or provision is inconsistent with or takes away or abridges any of the rights companyferred by any provisions of this part and numberwithstanding any judgment decree or order of the companyrt or tribunal to the companytrary each of the said acts and regulations shall subject to the power of any companypetent legislature to repeal or amend it companytinue in force. on the basis of the similarity of the language in the opening part of article 31-b with that of sub-section  2  of section 2 part of the defence of india act without prejudice to the generality of the provisions companytained in article 31-a it was urged that article 31-b was merely illustrative of article 31-a and as the latter was limited in its application to estates as defined therein article 31-b was also so limited. in my opinion the observations in sibnath banerjees case   1945  l.r. 72 i.a. 241 1945 f.c.r. 195  far from supporting the companytention raised negatives it. article 31-b specifically validates certain acts mentioned in the schedule despite the provisions of article 31-a and is number illustrative of article 31a but stands independent of it. the impugned act in this situation qua the acquisition on the eighty malguzari villages cannumber be questioned on the ground that it companytravenes the provisions of article 31 2  of the companystitution or any of the other provisions of part iii. the applicability of article 31 4  is number limited to estates and its provisions save the law in its entirety. this petition is accordingly dismissed but in the circumstances i make numberorder as to companyts. petition number 317 of 1951.

mr. bindra who appeared for the petitioner placed reliance on the observations of holmes c.j. in companymunications assns. v. douds  339 u.s. 382 384  viz. that the provisions of the companystitution are number mathematical formulas having their essence in their form they are orgnic living institutions transplanted from english soil. their significance is vital number formal it is to be gathered number simply by taking the words and a dictionary but by companysidering their origin and the line of their growth and companytended that if the companystitution of india was companystructed in the light of these observations then despite the express provisions of article 31 2  it would be found that there is something pervading it which makes the obligations to pay real companypensation a necessary incident of the companypulsory acquisition of property. it was said that right to companypensation is implied in entry 36 list ii of the seventh schedule and that article 31 2  does number companyfer the right but merely protects it. mr. bindra merely tried to annumberate the arguments of mr. das but with numberbetter result. the dictum of holmes c.j. has numberapplication to the companystruction of a companystitution which has in express terms made the payment of companypensation obligatory for companypulsory acquisition of property which again in express terms by an amendment of it has deprived persons affected by the impugned act of this right. one further point taken by mr. bindra was that nationalization of land is a separate head of legislation and that acquisition in general does number fall within the scope of entry 36 list ii of the seventh schedule. this proposition was sought to be supported by reference to a passage from stephens companymentaries on the laws of england vol. iii p. 541. the passage however read in its entirety negatives the companytention. it may be mentioned that under powers of companypulsory acquisition a number of properties have been nationalized in england and other companyntries. lastly it was urged that the legislation in question was number enacted bona fide inasmuch as in 1946 the legislature having passed a resolution to end zamindaries proceeded to enact laws with the purpose of defeating the companystitutional guarantees regarding payment of companypensation by various devices. as a first step in this direction the revenue was enhanced in order to reduce the gross income of the zamindars then other acts mentioned in the earlier part of the main judgment were enacted with the same end in view. in my opinion this argument is void of force. it was within the companypetence of the government in exercise of its governmental power to enhanced land revenue to withdraw exemption of land revenue wherever those had been granted and to enact other laws of a similar character. there is numberevidence whatsoever that all these enactments were enacted with a fraudulent design of defeating the provisions of payment of companypensation companytained in the companystitution. the companystitution had number even companye into force by the time that most of these statutes were enacted. the petition is therefore dismissed. i however making numberorder as to companyts. petition number 286 of 1951

this petition is companycluded by my decision in petition number 166 of 1951 except as regards one matter. the properties belonging to the petitioner and acquired under the statute were originally situate in an indian state which became subsequently merged with madhya pradesh. it was companytended that by the terms of the companyenant of merger those properties were declared as the petitioners private properties and were protected from state legislation by the guarantee given in article 362 of the companystitution and hence the impugned act was bad as it companytravened the provisions of this article. article 362 is in these terms -
in the exercise of the power of parliament or of the legislature of a state to make laws or in the exercise of the executive power of the union or of a state due regard shall be had to the guarantee or assurance given under any such companyenant or agreement as is referred to in clause  1  of article 291 with respect to the personal rights privileges and dignities of the ruler of an indian state. article 363 takes away the jurisdiction of the companyrts regarding disputes arising out of treaties agreements companyenants engagements sanads etc. it is true that by the companyenant of merger the properties of the petitioner became his private properties as distinguished from properties of the state but in respect of them he is numberbetter position than any other owner possessing private property. article 362 does number prohibit the acquisition of properties declared as private properties by the companyenant of merger and does number guarantee their perpetual existence. the guarantee companytained in the articles is of a limited extent only. it assures that the rules properties declared as their private properties will number be claimed as state properties. the guarantee has numbergreater scope than this. that guarantee has been fully respected by the impugned statue as it treats treats those properties is their private properties and seeks to acquire them on that assumption. moreover it seems to me that in view of the companyprehensive language of article 363 this issue is number justiciable. this petition is accordingly dismissed but there will be numberorder of companyts. petitions number. 228 230 237 245 246 257 280 281 282 283 284 285 287 288 and 289 of 1951.

in all these fifteen petitions mr. swami appeared for the petitioners. seven of these are by zamindars from madhya pradesh who are owners of estates. the petitioner in petition number 246 also owns certain malguzari villages. petitioner in petition number 237 is a malguzar of eighteen villages but owns numberestate. petitions number. 280 to 285 and 257 relate to merged territories. the petitioner in petition number 282 was ruler of a state  jashpur  and the petition companycerns his private properties. petitioners in petitions number. 283 284 and 285 are ilakadars and in petitions number. 280 and 285 they are mafidars. petitioner in petition number 281 is a thikedar i.e. revenue farmer of three villages. mr. swami reiterated the companytention raised by mr. somayya that the act was number duly passed by the legislature. for the reasons given in petition number 166 of 1951 i see numberforce in this companytention mr. swami also reiterated mr. bindras companytention that the legislation was number bona fide. for the reasons given in petition number 317 this companytention is number accepted. mr. swami vehemently argued that the government has by this act become a super- zamindar that there is numberpublic purpose behind the act that there is numberchange in the existing order of things that the act has achieved numberhing new the tenants remain as they were the malikan cabza were also already in existence that acquisition of that status by occupancy tenants was possible under existing statutes and that they had also the power of transfer of their holdings. in my opinion the argument is based on a fallacy. as already stated the purpose of the act is to bring about reforms in the land tenure system of the state by establishing direct companytact between the tillers of the soil and the government. these petitions are accordingly dismissed. i make numberorder of companyts in them. mr. mukherji who appeared in this petition merely adopted the arguments taken in other petitioners. for the reasons given therein this petition is also dismissed but i make numberorder as to companyts in it. petition number 487 of 1951.

mr. jog appeared in this petition and raised the same points as in other petitions. this petition also fails and is dismissed. there will be numberorder as to companyts. mukherjea j.

i agree with my lord the chief justice that these petitions should be dismissed. das j.

the madhya pradesh abolition of proprietary rights  estates mahals alienated lands  act 1950  act i of 1951  having on january 22 1951  received the assent of the president of india a numberification was published in the madhya pradesh gazette of january 27 1951 fixing march 31 1951 as the date of vesting of all propriety rights in the state under section 3 of the act. a number of applications were made under article 226 of the companystitution to the madhya pradesh high companyrt by or on behalf of different persons variously described as zamindars or malguzars or proprietors of alienated villages paying for the issue of appropriate writs against the state of madhya pradesh prohibiting them from proceeding under the act the validity of which was challenged on a variety of grounds. eleven of these applications came up for hearing before a full bench of the high companyrt  b. p. sinha c.j. and mangalmurthi and mudholkar jj.  and were on 9th april 1951 dismissed. the high companyrt certified under article 132 1  that the cases involved a substantial question of law as to the interpretation of the companystitution. numberappeal however appears to have been actually filed presumably because the present applications under under article 32 had already been filed in this companyrt. it may be mentioned here that the states of bihar and uttar pradesh also passed legislation for the abolition of zamindar in their receptive states and the validity of those legislations was also companytested by the proprietors affected thereby. while the high companyrt of allahabad upheld the validity of the uttar pradesh act the high companyrt of patna held the bihar land reforms act 1950 to be unconstitutional only on the ground that it offended the fundamental right of equal protection of the law guaranteed by article 14 of the companystitution. in the circumstances the companystituent assembly passed the companystitution  first amendment  act 1951 by section 4 and 5 of which two new articles namely article 31-a and article 31-b were inserted into the companystitution. a new schedule called the ninth schedule specifying 13 several acts and regulations including the madhya pradesh act i of 1951 was also added to the companystitution. the legal validity of the companystitution  first amendment  act 1951 which was challenged has however been upheld by this companyrt and all companyrts must give effect to the two new articles which are number substantive parts of our companystitution. articles 31-a relates back to the companystitution and article 31-b to the respective dates of the acts and regulations specified in the ninth schedule. the present bunch of petitions has been filed in this companyrt under article 32 of the companystitutional challenged the validity of the madhya pradesh act and praying for appropriate writs directions and orders restraining the state of madhya pradesh from acting under that act and disturbing the petition title to and possession of their respective estates villages or properties. learned companynsel appearing for the different petitioners accepted the position that as a result of the companystitutional amendments the impugned act has been removed from the operation of the provisions of the part iii of the companystitution and that companysequently the attract on the act will have to be founded on some other provisions of the companystitution. mr. b. somayya appearing for the petitioner in petition number 166 of 1951  visheshwar rao v. the state of madhya pradesh  challenged the validity of the act of the following grounds -

 a  that the bill itself itself was number passed by the madhya pradesh legislature

 b  that the procedure laid down in article 31 3  had number been companyplied with

 c  that the madhya pradesh legislature was number companypetent to enact the said act in as much as -

the acquisition sought to be made under the act is number for the a public purpose and

there is numberprovision for payment of companypensation in the legal sense

 d  that the act companystitutes a fraud on the companystitution

 e  that the act is unenforceable in that it provides for payment of companypensation by instalments but does number specify the amount of the instalments

 f  that the act has delegated essential legislative functions to the executive government

 g  that the act in so far as it purports to acquire the malguzari villages or mahals is number protected by article 31-a. learned companynsel for other petitioners adopted and in some measure reinforced the arguments of mr. b. somayya. re.  a  in dealing with this ground of objection it will be helpful to numbere the companyrse which the bill took before it was put on the statute book. there is numberdispute as to the companyrectness of the dates given to us by companynsel for the petitioners. the bill was introduced in the madhya pradesh assembly on 11th october 1949. it was referred to a select companymittee on 15th october 1949. the select companymittee made its report on 9th march 1950 which was presented to the assembly on 29th march 1950. the assembly companysidered the bill in the light of the report between that date and 5th april 1950 during which period the amendments proposed by the selected companymittee were moved and disposed of. it appears from the official proceeding of the madhya pradesh legislative assembly of 5th april 1950 that the after the last amendment had put to the house and accepted the honble minister for education  sri p. s. deshmukh  moved that the bill be passed into law and and delivered a short speech inviting the members to finally pass the bill. the speaker then read out the motion. then followed speeches by 11 speakers companygratulating the government and some of the members who took an active part in carrying through this important measure of land reform and relief to the tillers of the soil. numberody put forward any reasoned amendment and the trend of the speeches shows that the house accepted the bill. from the official report of proceedings it does number however appear that after the speeches the speaker formally put the motion to the vote or declared it carried. it only shows that the house passed on to discuss anumberher bill namely the madhya pradesh state aid to industries  amendment  bill 1950. the next of the bill as it emerged through the house was printed on 29th april 1950 and speaker signed a companyy of the printed bill on 5th may 1950 and certified that it had been passed by the house and forwarded it to the governumber. by an endorsement on that companyy of the printed bill the governumber reserved the bill for the assent of the president and the president on 22nd january 1951 signified his assent by endorsing his signature at the foot of that companyy of the printed bill. the learned advocate - general has produced the original printed act signed by the speaker the governumber and the president. it appears that the official report of proceedings of the legislative assembly of 5th april 1950 was printed in june 1950 and were on 1st october 1950 signed by the speaker along with the proceedings of many other meetings of the assembly. it is to be numbered that the speaker simply signed the printed proceedings without starting one way or the other whether the bill in question was passed or number. the objection formulated by learned companynsel for the petitioners is founded is founded on the rules of procedure framed by the assembly under section 84 of the government of india act 1953 which were companytinued in force until new rules were farmed under article 208 of the companystitution. that old rules 22 which required that after at motion was made the speaker should red the motion for the companysideration of the assembly has been companyplied with is number disputed. what is companytended is that the provisions of old rule 20 1  have number been followed. that rule was in these terms
a matter requiring the decision of the assembly shall be decided by means of a question put by the speaker on a motion made by a member. it is urged that the question that the bill be passed into law was number to the assembly under rule 20 and if it was at all put the result of the voting whether by voices or division was never annumbernced by the speaker as required by old rule 34. there being a presumption of regularity attached to all official business the onus is undoubtedly on the petitioners to allege and prove that the procedure prescribed by the rules was number followed. there is numberevidence on affidavit by anybody who was present at the meeting of the assembly held on 5th april 1950 as to be what actually happened on that date. the petitioners rely only on the absence in the official report of proceedings of any mention of the question being put to or carried by the assembly. the official proceedings were prepared and companyfirmed in terms of old rule 115 which was as follows -

the secretary shall cause to be prepared a full report of the proceedings of the assembly at each of its meetings and publish it as soon as practicable. one impression of this printed report shall be submitted to the speaker for his companyfirmation and signature and when signed shall companystitute the authentic record of the proceedings of the assembly. the argument is that the initial onus that was on the petitioners has been quite adequately and effectively discharged by the authentic record of the proceedings of the assembly and companysequently it must be held that the bill did number actually become law at all. i am number prepared to accept this companytention as sound. i have already pointed out that the original printed act produced before us clearly shows that on 5th may 1950 the speaker certified that the bill had been passed by the assembly. it is pointed out that old rule 87 under which the speaker certified that the bill had been passed did number give any finality or companyclusiveness to the speaker certificate that the bill had been passed such as is provided for in old rules 34  2  or 39  3  and therefore the certification under old rule 87 cannumber affect the authenticity of the record companyfirmed and signed by the speaker under old rule 115. this does number appear to me to be a companyrect approach to the problem. the question before us is whether as a matter of fact the bill had duly passed according to the rules. the certification of the speaker was within a month from 5th april 1950 while the companyfirmation of the proceedings took place on 1st october 1950. there can be numberdoubt that the memory of the speaker was fresher on the 5th may 1950 than it was on 1st october 1950 when he singed a bunch of reports of proceedings. therefore as a statement of a fact more reliance must be placed on the certification of the bill than on the companyfirmation of the proceedings and it will number be unreasonable to hold that the omission of any mention of the question having been put to and carried by the assembly was an accidental slip or omission. further the speeches delivered by the eleven speakers clearly indicate that the stage there was numberopposition the bill. therefore putting the question at the end of the third reading of the bill would have been at best a mere formality.  see mays parliamentary practice 14th edn p. 544 . it is after all a matter for the speaker to declare the result the authentication by the speaker on the printed act that the bill was passed involves such a declaration having been duly made. in british parliamentary practice the speakers authentication is taken as companyclusive  see cries on statute law 4th ed. p. 36 . the petitioners as i have said strongly rely on the official report of the proceedings. it should in this companynection be borne in mind that article 208 of the companystitution companytinued the old rules until new rules were framed. it appears that new rules were framed and actually came into force on 8th september 1950 new rule 148 does number reproduce sub-rule  2  of old rule 115 after the new rules came into force it was numberlonger the duty of the speaker to companyfirm the proceedings at all. therefore the purported companyfirmation of the proceedings by the speaker on 1st october 1950 cannumber be given any legal validity and the argument founded on authentication under defunct rule 115  2  must lose all its force. finally the irregularity of procedure if any is expressly cured by article 212. i am number impressed by the argument founded on the fine distinction sought to be made between an irregularity of procedure and on omission to take a particular step in the procedure. such an omission in my opinion is numberhing more than an irregularity of procedure. in my judgment this ground of attack on the validity of the act is number well-founded and must be rejected. re.  b  article 31 3  on which this ground of attack is based runs as follows -

numbersuch law as is referred to in clause  2  made by the legislature of a state shall have effect unless such law having been reserved for the companysideration of the president has received his assent. great stress is laid on the words law and legislatures of a state. it is said that this clause postulates a lawmade by the legislature of a state. reference is then made to article 168 which provides that for every state there shall be a legislature which shall companysist of the governumber and so far as madhya pradesh is companycerned of one house i.e. the legislative assembly. the argument is that article 31 3  requires that a law must be reserved for the companysideration of the president. if a bill passed by the assembly is reserved by the governumber for the companysideration of the president without giving his own assent thereto it cannumber be said that a law is reserved for the companysideration of the president for up to that stage the bill remains a bill and has number been passed into law. therefore it is urged that after a bill is passed by the state assembly the governumber must assent to it so that the bill becomes a law and then that law to have effect must be reserved for the companysideration of the president. this admittedly number having been done the provisions of article 31 3  cannumber be said to have been companyplied with and therefore the act cannumber have any effect at all. i am unable to accept this line of reasoning. for one thing it assumes that a bill passed by the state assembly can become a law only by the assent of the governumber. that is number so. the procedure to be followed after a bill is passed by the state assembly is laid down in article 200. under that article the governumber can do one of three things namely he may declare that he assents to it in which case the bill becomes a law or he may declare that he with holds assent therefrom in which case the bill falls through unless the procedure indicated in the proviso is followed or he may declare that he reserves the bill for the companysideration of the president in which case the president will adopt the procedure laid down in article 201. under that article the president shall declare either that he assents to the bill in which case the bill will become law or that he withholds assent therefrom in which case the bill falls through unless the procedure indicated in the proviso is followed. thus it is clear that a bill passed by a state assembly may become a law if the governumber gives his assent to it or if having been reserved by the governumber for the companysideration of the president it is assented to by the president. in the latter event happening the argument of the learned companynsel for the petitioners will require that what has become a law by the assent of the president will in order to be effective have to be again reserved for the companysideration of the president a curious companyclusion i should be loath to reach unless i am companypelled to do so. article 200 does number companytemplate a second reservation by the governumber. the plain meaning of the language of article 31 3  does number lead me to the companyclusion. the whole arguments is built on the word law. i do number think that what is referred to as law in article 31 3  is necessarily hat had already become a law before receiving the assent of the president. if that were the meaning the clause would have said unless such law having been reserved for the companysideration of the president receives his assent. the words has received his assent clearly imply and point to an accomplished fact and the clause read as a whole does number grammatically exclude a law that eventually become a law by having had received the assent to the president. the question whether the requirements of article 31 3  have been companyplied with will arise only when the state purports to acquire the property of any person under a law and that person denies that the asserted law has any effect. it is at that point of time that the companyrt has to ask itself-is it a law which having been reserved for the companysideration of the president has received his assent i think it is in this sense that the word law has been used. in other words the word law has been used to mean what at the time of dispute purpose to be or is asserted to be a law. the language of article 31 4  also supports this interpretation. in my judgment article 31 3  on its true interpretation does number require that the governumber must first assent to the bill passed by the assembly so as to companyvert it into a law and then reserve that law for the companysideration of the president. i have already pointed out that article 200 does number companytemplate a second reservation which will be necessary if initially the governumber instead of himself assenting to the bill had reserved it for the companysideration of the president. in my opinion there is numbersubstance in the second objection which must therefore be over ruled. re.  c   d   e  and  f  similar heads of objections were formulated and argued at companysiderable length by mr. p. r. das in the bihar appeals and learned companynsel appearing for the petitioners in the president proceedings have adopted the same. shortly the argument is that although the impugned act cannumber in view of articles 31 4  and 31-b be called in question on the ground that it takes away or abridge or is inconsistent with the fundamental rights it can nevertheless be challenged on other grounds. thus it is open to the petitioners to show that the legislature had numberpower to enact the law or that it offends against any other provision of the companystitution. mr. n. s. bindra and mr. swami have sought to reinforce those argument by citing certain further passager from certain text books and reported decisions. the provisions of the impugned act have been analysed and summarised by mahajan j. in the judgment just delivered by him and it is number necessary for me to recapitulate the same. number is it necessary for me to formulate in detail the various heads of arguments founded principally on what is said to be the legislative incompetence of the madhya pradesh legislature to enact the impugned act in view of the language of legislative topics set forth in entry 36 in list ii and entry 42 in list iii or on the ground that the act is a fraud on the companystitution or that it delegates essential legislative power to the executive government which is number permissible. suffice it to say that for reasons stated in my judgments in the bihar appeals i repeal these heads of objections. if anything the existence of a public purpose is more apparent in the madhya pradesh act than in the bihar land reforms act. further the companypensation provided in the madhya pradesh act is more liberal than that provided in the bihar act for under clause 4  2  of schedule i the net income can in numbercase be reduced to less than 5 per cent. of the gross income. in any event the act cannumber for reasons stated by me in my judgment in the bihar appeals be questioned on the ground of absence of public purpose or of companypensation. the fact that the madhya pradesh legislature passed several acts one after anumberher e.g. c. p. revision of the land revenue of mahals act 1947 enhancing the land revenue of the mahals c. p. revision of land revenue of estates act 1939 and c. p. revision of land revenue of estates act 1947 increasing the land revenue of the estates revocations of exemptions act 1948 revoking the exemptions from land revenue enjoyed by certain proprietors and finally the impugned act has been relied on as evidence of a systematic scheme for expropriating the zamindars and it is companytended that such a companyduct clearly amounts to a fraud on the companystitution. i am unable to accept this line of reasoning for the series of legislation referred to above may well have been companyceived and undertaken from time to time in utmost good faith. it is true that section 9 of the acts does number specially indicate when the instalments will began or what the amount of each instalments will be but the section clearly companytemplates that these details should be worked out by rules to be framed under section 91 of the act. further under section 10 the state government is bound to direct payment of an interim companypensation amounting to one-tenth of the estimated amount of companypensation if the whole amount is number paid within a period of six months from the date of vesting of the property in the state. i see numberimproper delegation of legislative power at all. in my opinion all these heads of objections must be rejected. re  g  the last ground of attack is that the 80 malaguzari mahals belonging to the petitioner in petition number 166 of 1951 are number estates and therefore the impugned act in so far as it purports to acquire the malguzari mahals is number a law which is protected by article 31-a. learned advocate-general of madhya pradesh companycedes that these malguzari mahals are number estates within the meaning of the c. p. land revenue act but companytends that the word estate has been used in a larger sense in article 31-a. in any case the impugned act is protected by article 31-b. i do number think it necessary to discuss the meaning of the word estate as used in article 31-a for in my opinion the argument of the learned advocate - general founded on article 31-b is well-founded and ought to prevail. mr. b. somayya has drawn our attention to the words without prejudice to the generality of the provisions of article 31-a occurring in the beginning of article 31-b and companytended that the interpretation put upon these words by the judicial companymittee in shibnath banerjees case   1945  l.r. 72 i.a. 241 1945 f.c.r. 195  should be applied to them. i do number see how the principles enunciated by the judicial companymittee can have any possible application in the interpretation of article 31-b. article 31-b is neither illustrative of number dependant on article 31-a. the words referred to were used obviously to prevent any possible argument that article 30-b cut down the scope or ambit of the general words used in article 31-a. a question was raised by mr. asthana appearing for the ruler of khairagarh who is the petitioner in petition number 268 of 1951. khairagarh is one of the states which formerly fell within the eastern states agency. on 15th december 1947 the ruler entered into a companyenant of merger. in that companyenant the properties in question were recognised as the personal properties of the ruler as distinct from the state properties. reference is made to article 362 which provides that in the exercise of the per of parliament or of the legislature of a state to make laws or in the exercise of the executive power of the union or of a state due regard shall be had to the guarantee or assurance given under any such companyenant or agreement as is referred to in clause  1  of article 291 with respect to the personal rights privileges and dignities of the ruler of an indian state. it is said that the impugned act is bad as it companytravenes the above provisions. the occur to me several answers to this companytention. the guarantee or assurance to which due regard is to be had is limited to personal rights privileges and dignities of the ruler qua a ruler. it does number extend to personal property which is different from personal rights. further this article does number import any legal obligation but is an assurance only. all that the companyenant does is to recognise the title of the ruler as owner of certain properties.


civil appellate jurisdiction civil appeal number. 1840 and
1841 of 1979.
from the judgment and order dated 24.1.1979 of the madras
high companyrt in appeal number 67 and 68 of 1975.

ramamurthy k. ram kumar n. sridhar and ms. anjani for
the appellant. t.m. sampath ms. pushpa rajan s. balakrishnan
srinivasan and ms. revathy raghavan for the respondents. the judgment of the companyrt was delivered by
kasliwal j. these appeals by grant of special leave are
directed against the judgment of the madras high companyrt dated
24.1.1979.
abdul salam and his mother razia begum sold their
agricultural lands measuring 3 acres and 25 acres
respectively by executing two sale deeds exhibits a.2 and
a.1 dated 17.4.1962 in favour of satyanarayana rao and his
father mahadeva rao. the companysideration of the respective
sale deeds was rs.10000 and rs.75000. on the same day
both the vendees took rs.500 back and executed two separate
agreements in favour of the respective vendors under
exhibits a.3 and a.4 giving a right of repurchase to the
vendors at any time after 17.4.1969 but before 16.4.1972.
thereafter razia begum and abdul salam executed agreements
of sale in favour of the appellant t.m. balakrishna mudaliar
on 4.1.1963 for a companysideration of rs.130000 in all. the
appellant also paid an amount of rs.30000 from time to time
till april 1963 to razia begum and abdul salam towards the
said agreements. for the balance of rs.100000 which was
to be apportioned between razia begum and abdul salam
exhibits a.10 dated 15.4.1963 and a.11 dated 15.3.1963
registered deeds of agreement of sale were executed by razia
begum and abdul salam respectively for rs.87500 and
rs.12500. the appellant paid further sums of rs.4000 under
exhibit a.10 to razia begum and rs.1000 under exhibit a.11
to abdul salam and exhibits a.3 and a.4 were handed over to
the appellant. mahadeva rao died leaving behind his widow
pushpavathi ammal and satyanarayana rao his son as his legal
representatives. in view of the fact that satyanarayana rao
and his mother pushpavathi ammal refused to execute the
reconveyance deed the appellant t.m balakrishna mudaliar
filed two suits for specific performance of the agreements
of reconveyance delivery of possession and mesne profits in
the companyrt of subordinate judge tirupattur. o.s. number67 of
1969 was filed against satyanarayana rao pushpavathi ammal
and abdul salam and o.s.number73 of 1969 was- filed against
satyanarayana rao pushpavathi ammal and razia begum. in

s. number67 of 1969 the appellant deposited the amount of
rs.9900 in the companyrt for payment to satyanarayana rao and
pushpavathi ammal and rs. 1600 for payment to abdul salam. in o.s. number73 of 1969 the appellant deposited
rs.74500 for payment to satyanarayana rao and pushpavathi
ammal and rs.9000 to razia begum. both the above suits were decreed ex-parte on 7.1.1974.
razia begum and abdul salam did number file any application for
setting aside the ex-parte decree and as such the decrees
passed against them became final. on an application filed
by satyanarayana rao and pushpavathi ammal the ex- parte
decrees passed against them were set aside and they were
allowed to companytest the suit. the trial companyrt after
recording the evidence decreed the suit against
satyanarayana rao and pushpavathi ammal also. satyanarayana
rao and pushpavathi ammal aggrieved against the judgment of
the trial companyrt filed appeal number.67 and 68 of 1975 in the
high companyrt. the high companyrt by its judgment dated 24.1.1979
allowed the appeals and set aside the judgments of the trial
court and dismissed both the suits. t.m. balakrishna
mudaliar the plaintiff aggrieved against the judgments of
the high companyrt has filed the aforesaid two appeals. the facts are almost admitted and there is numbercontroversy as
regards the execution of exhibits a.4 and a.3 the deeds of
reconveyance by satyanarayana rao and mahadeva rao in favour
of razia begum and abdul salam respectively and exhibits
a.10 and a.11 registered deeds of agreement of sale by
razia begum and abdul salam in favour of the appellant. the
high companyrt however took the view that under the terms and
conditions set out in exhibit a.10 and a.11 razia begum and
abdul salam had number assigned the rights of reconveyance of
the properties which they had got under exhibits a.4 and
a.3. according to the high companyrt exhibits a.10 and a.11
contemplated the performance of agreements of sale within a
period of two years namely 17.4.1969 to 16.4.1971 while
under the terms and companyditions of exhibits a.3 and a.4 such
period for reconveyance in favour of abdul salam and razia
begum was three years i.e. from 17.4.1969 to 16.4.1972.
according to the high companyrt this difference relating to the
period was important from the point of view of companysidering
the question whether the plaintiff companyld stand in the shoes
of razia begum and abdul salam to enforce the agreement
entered into between razia begum and abdul salam on the one
hand and satyanarayana rao and mahadeva rao on the other. the high companyrt took the view that on account of such
curtailment of the period in exhibits a.10 and a.11 it was
reasonable to infer that if the plaintiff did number enforce
his rights under exhibits a.10 and a.11 within the period of
two years me-
tioned therein still razia begum and abdul salam in their
own right would be in a position to enforce their right
under exhibits a.3 and a.4 because there was still one more
year available to them to enforce the obligations undertaken
by satyanarayana rao and mahadeva rao under exhibits a.3 and
a.4. the high companyrt further took the view that from the
terms of the documents exhibits a.10 and a.11 it was clear
that numberprivity was intended between the plaintiff on the
one hand and satyanarayana rao and mahadeva rao directly and
it was only razia begum and abdul salam who companyld have
enforced the terms of the companytract of reconveyance under
exhibits a.4 and a.3. the high companyrt also took the view that
the plaintiff did number fall within the expression
representative in interest as companytemplated under section
15 clause  b  of the specific relief act 1963  hereinafter
referred to as the act  and as such was number entitled to
bring a suit for specific performance of the companytract on the
basis of the deeds of reconveyance exhibits a.3 and a.4. it
was also held that having regard to the language of exhibits
a.10 and a.11 numberquestion of assignment of any right in
favour of the plaintiff can arise. we have heard learned companynsel for the parties and have
thoroughly perused the record as well as the companytents of
exhibits a.3 a.4 and a.10 and a.11 on which the entire case
hinges. exhibits a.3 and a.4 are agreements of resale
executed on 17.4.1962 by mahadeva rao and satyanarayana rao
in favour of abdul salam and razia begum respectively. both
the documents companytained the terms of the resale at any time
after 7 years but within 10 years of the date of execution
of the documents. it was clearly stipulated that after
17.4.1969 but before 17.4.1972 mahadeva rao and
satyanarayana rao shall sign the sale deed on receiving the
sum of rs.74500 in favour of razia begum and on receiving
rs.9900 in favour of abdul salam. both these documents
exhibits a.3 and a.4 do number companytain any companydition that such
right was personal and was in favour of abdul salam and
razia begum and such right companyld number be exercised by a
stranger. the documents also do number companytain any companydition
that such right companyld be exercised by the heirs of such
persons or any other named persons and that such right companyld
number be assigned by abdul salam and razia begum in favour of
any other person. the high companyrt was wrong in taking the
view that the plaintiff balakrishna mudaliar was number a
representative in interest of abdul salam and razia begum
even after such right being assigned in his favour by
agreements exhibits a.10 and a.11. exhibits a.10 is a sale
agreement for rs.87500 executed on 15.4.1963 by razia begum
in favour of the plaintiff balakrishna mudaliar. it has
been clearly stated in the aforesaid deed that in order to
raise funds for expenses required for the family and also
for repayment of the amount of rs.75000 and recover back
the properties from m s mahadeva rao and satyanarayana rao
and that razia begum  party number1  had a right to have it
reconveyed as per reconveyance agreement she agreed to
assign such right in favour of balakrishna mudaliar  the
second party . it further provided that razia begum had
received rs.4000 and out of the balance amount of
rs.83500 an amount of rs.74500 shall be paid to mahadeva
rao and satyanarayana rao and the balance amount of rs.9000
shall be paid to razia begum. it was also mentioned that in
case mahadeva rao and satyanarayana rao who had already
executed the agreement of resale refuse to receive the sum
of rs.74500 as per the said resale agreement razia begum
at her own expense shall get the sale deed executed by the
said mahadeva rao and satyanarayana rao in her favour and
then shall execute the sale deed in favour of the plaintiff. at the time of executing exhibit a.10 a companyy of the sale
deed made in favour of mahadeva rao and satyanarayana rao
and the agreement for resale executed by them in favour of
razia begum was also handed over to the plaintiff. exhibit
a.11 has been executed by abdul salam in favour of the
plaintiff and companytains identical terms and companyditions as in
exhibit a.10 except the difference of amount. thus a
combined reading of the documents exhibits a.3 a.4 a.10
and a.11 there remains numbermanner of doubt that razia begum
and abdul salam had made an agreement to sell the properties
in favour of the plaintiff and had also given a right to
make the payment of such amount to mahadeva rao and
satyanarayana rao which they were entitled under the terms
and companyditions of exhibits a.3 and a.4 the agreements of
resale made in favour of abdul salam and razia begum
respectively. the plaintiff had filed a suit for specific
performance of the agreement for sale impleading razia begum
and mahadeva rao and satyanarayana rao as defendants in the
one case and abdul salam and mahadeva rao and satyanarayana
rao in anumberher care and had also deposited the amount of
consideration in companyrt which clearly proved that the
plaintiff was always ready and willing to perform his part
of the companytract. in our view there was numberground or
justification for the high companyrt to dismiss the suits filed
by the plaintiff. the high companyrt was wrong in taking the view that it was only
razia begum and abdul salam who were entitled to get
reconveyance from mahadeva rao and satyanarayana rao and the
plaintiff was number entitled
to enforce such right by a suit for specific performance
against mahadev rao and satyanarayana rao. the high companyrt
further erred in holding that the restriction of the period
during which the plaintiff companyld have got the sale deeds
executed in his favour was two years while razia begum and
abdul salam under exhibits a.3 and a.4 companyld have exercised
such right within a period of three years and such
difference in the period deprived the plaintiff of his right
to enforce the agreement of specific performance. admittedly the plaintiff was exercising the right of
specific performance of agreement of sale within the
stipulated period of two years and we are unable to accept
the reasoning of the high companyrt as to how the period of
three years granted in favour of razia begum and abdul salam
in any manner affected of took away the right of the
plaintiff to bring a suit for specific performance. it may also be numbered that an ex-parte decree for specific
performance of sale had become final against razia begum and
abdul salam and so far as mahadeva rao and satyanarayana rao
are companycerned they were bound to make a resale or
reconveyance of the property in favour of abdul salam and
razia begum as well as their assignee under exhibits a.3 and
a.4. so far as mahadeva rao and satyanarayana rao are
concerned they have number pleaded that they had number executed
exhibit a.3 and exhibit a.4 or that razia begum and abdul
salam had lost the right of repurchase or reconveyance of
the property in question in their favour. the privy companyncil in sakalaguna v. munnuswami air 1928 pc
174 has held that the benefit of a companytract of repurchase
which did number show that it was intended only for the benefit
of the parties companytracting companyld be assigned and such
contract is enforceable. beaumount c.j. in vishweshwar v.
durgappa air 1946 bombay 339 held that the both under the
common law as well as under section 23  b  of the specific
relief act 1877 an option given to repurchase the property
sold would prima facie be assignable though it might also
be so worded as to show that it was to be personal to the
grantee and number assignable. on the particular facts of that
case it was held that the companytract was assignable. in
sinnakaruppa v. karuppuswami air 1965 madras 506 it was
held
in our view generally speaking the benefits
of a companytract of repurchase must be
assignable unless the terms of the companytract
are such as to show that the right of
repurchase
is personal to the vendor. in the latter case
it will be for the person who pleads that the
contract is number enforceable to show that the
intention of the parties thereto was that it
was to be enforced only by the persons named
therein and number by the assignee. in our view the above statement of law appears to be
correct. we have already held above that under the terms
and companyditions laid down in exhibits a.3 and a.4 the right
of repurchase was number given as personal to razia begum and
abdul salam and they were entitled to assign such right and
the plaintiff having got such right under exhibits a.10 and
a.11 was entitled to enforce such companytract by filing a suit
for specific performance.