civil appellate jurisdiction civil appeal number 833 of 1966.
appeal by special leave from the order dated june 30
1965 of the industrial tribunal maharashtra in reference
 it  number 347 of 1964.

d. vimadlal c.m. mehta and b.r. agarwala for the
appellant. b. naik k. rajendra chaudhuri k.r. chaudhuri and

s. srinivasa rao for respondent number 1.
the judgment of the companyrt was delivered by
bhargava j. the deputy companymissioner of labour bombay
referred for adjudication by the industrial tribunal
maharashtra bombay  hereinafter referred to as the
tribunal  under section 10 2  of the industrial disputes
act  hereinafter referred to as the act  a dispute
between the cricket club of india limited  hereinafter
referred to as the club  and the workmen employed by it in
respect of various demands made by the workmen relating to
classification of employees dearness allowance leave
facilities payment for overtime permanency shift
allowance etc. a preliminary objection was taken on behalf
of the club that it is number an industry and companysequently
the provisions of the act were inapplicable and no
reference companyld be companypetently made under s. 10 2  of the
act. the tribunal rejected this preliminary objection
holding that the club came within the definition of
industry in s. 2 j  of the act and made a direction that
the case be set down for hearing on merits. the club has
appealed against this interim award of the tribunal on the
preliminary question by special leave. the club is admittedly a members club and is number a
proprietary club though it is incorporated as a companypany
under the indian companypanies act. at the relevant time the
club had a membership of about 4800 and was employing 397
employees who claimed to be workmen. the principal objects
of the club are to encourage and promote various sports
particularly the game of cricket in india and elsewhere to
lay out grounds for the
game of cricket and also to finance and assist in financing
cricket matches and tournaments. in addition it provides
avenue for sports and games as well as facilities for
recreation and entertainment for the members. it maintains
tennis companyrts in pursuance of anumberher outdoor activity. the
indoor games for which provision is made include billiards
table tennis badminton and squash. it also maintains a
swimming pool. the club has also provision for residence of
members for which purpose it has companystructed 48 residential
flats and 40 residential rooms some of which are air-
conditioned. persons occupying these residential flats and
rooms are charged at different rates according to the
accommodation provided. there is also a catering department
which provides food and refreshments for the members companying
to the club as well as those residing in the residential
portion and it also makes arrangements for dinners and
parties on special occasions at the request of members. the
affairs of the club are managed by an executive companymittee
and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members
service members and honumberary members. guests both local
and from outstation are admitted but subject to certain
restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4
lakhs a year accrues to the club. the other regular source
of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution
to the capital of the club. there are regular games for
members of the club but apart from those games in the
cricket ground which has a stadium attached to it matches
and various tournaments are held including test matches
between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches
on tickets sold by the club. in addition it appears that
four sports organisations amongst which mention may be made
particularly of the catholic gymkhana limited have been given
the right under agreements entered into with the club to
exclusive use of a number of seats in the stadium whenever
there are official and or unumberficial test matches and or
matches of similar status sponsored by the board of companytrol
for cricket in india or when a fixture is played by a
foreign team on the club grounds though number sponsored by
the board. under these agreements these organisations make
payment to the club for the members seats reserved at
prescribed rates and they are at liberty to charge whatever
they like from their own members who are admitted to those
seats with the further facility that they can make their
own provision for catering and supply of refreshments to
their members over part of the land made available to them
by the club. on the occasion. of
annual badminton and table tennis open tournaments a stall
is run by the club where both companypetitors and spectators are
allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club
is in the region of rs. 10 lakhs a year. the tribunal
after companysidering these facts and the various decisions
which were available to when it gave its award has companye to
the companyclusion that the club is an industry so that this
reference under the act is companypetent. the club which has
come up in appeal companytends that the decision of the
tribunal is number companyrect and that on the ratio of the
decision of this companyrt in the secretary madras gymkhana club
employees union v. the management of the gymkhana club 1
this companyrt should hold that the club is number an industry. our task for the decision of this case has been
simplified because this companyrt in the case of madras
gymkhana club 1  has clearly laid down the principles of
law which have to be applied in determining when a club can
be held to be an industry. in that case the entire previous
case-law relating to various institutions was fully
discussed. after that discussion the companyclusion of the
court was mainly expressed in the following words --
the principles so far settled companye to this. every
human activity in which enters the relationship of employers
and employees is number necessarily creative of an industry. personal services rendered by domestic and other servants
administrative services of public officials service in aid
of occupations of professional men such as doctors and
lawyers etc. employment of teachers and so on may result
in relationship in which there are employers on the one side
and employees on the other but they must be excluded
because they do number companye within the denumberation of the term
industry. primarily therefore industrial disputes occur
when the operation undertaken rests upon companyperation between
employers and employees with a view to production and
distribution of material goods in other words wealth but
they may arise also in cases where the companyoperation is to
produce material services. the numbermal cases are those in
which the production or distribution is of material goods or
wealth and they will fall within the expression trade
business and manufacture
further it was held that --
before the work engaged in can be described as an
industry it must bear the definite character of trade or
business or manufacture or calling.o.r must be
capable of being described as an undertaking in mate-
 1  1968 1 s.c.r. 742.
game of cricket and also to finance and assist in financing
cricket matches and tournaments. in addition it provides
avenue for sports and games as well as facilities for
recreation and entertainment for the members it maintains
tennis companyrts in pursuance of anumberher outdoor activity. the
indoor games for which provision is made include billiards
table tennis badminton and squash. it also maintains a
swimming pool. the club has also provision for residence of
members for which purpose it has companystructed 48 residential
flats and 40 residential rooms some of which are air-
conditioned. persons occupying these residential flats and
rooms are charged at different rates according to the
accommodation provided. there is also a catering department
which provides food and refreshments for the members companying
to the club as well as those residing in the residential
portion and it also makes arrangements for dinners and
parties on special occasions at the request of members. the
affairs of the club are managed by an executive companymittee
and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members
service members and honumberary members. guests both local
and from outstation are admitted but subject to certain
restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4
lakhs a year accrues to the club. the other regular source
of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution
to the capital of the club. there are regular games for
members of the club but apart from those games in the
cricket ground which has a stadium attached to it matches
and various tournaments are held including test matches
between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches
on tickets sold by the club. in addition it appears that
four sports organisations amongst which mention may be made
particularly of the catholic gymkhana limited have been given
the right under agreements entered into with the club to
exclusive use of a number of seats in the stadium whenever
there are official and or unumberficial test matches and or
matches of similar status sponsored by the board of companytrol
for cricket in india or when a fixture is played by a
foreign team on the club grounds though number sponsored by
the board. under these agreements these organisations make
payment to the club for the members seats reserved at
prescribed rates and they are at liberty to charge whatever
they like from their own members who are admitted to those
seats with the further facility that they can make their
own provision for catering and supply of refreshments to
their members over part of the land made available to them
by the cl.ub. on the occasion of
annual badminton and table tennis open tournaments a stall
is run by the club where both companypetitors and spectators are
allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club
is in the region of rs. 10 lakhs a year. the tribunal
after companysidering these facts and the various decisions
which were available to it when it gave its award has
come to the companyclusion that the club is an industry so
that this reference under the act is companypetent. the club
which has companye up in appeal companytends that the decision of
the tribunal is number companyrect and that on the ratio of the
decision of this companyrt in the secretary madras gymkhana
club employees union v. the management of the gymkhana
club 2  this companyrt should hold that the club is number an
industry. our task for the decision of this case has been
simplified because this companyrt in the case of madras
gymkhana club 1  has clearly laid down the principles of
law which have to be applied in determining when a club can
be held to be an industry. in that case the entire previous
case-law relating to various institutions was fully
discussed. after that discussion the companyclusion of the
court was mainly expressed in the following words --
the principles so far settled companye to this. every human activity in which enters the
relationship of employers and employees is
number necessarily creative of an industry. personal services rendered by domestic and
other servants administrative services of
public officials service in aid of
occupations of professional men such as
doctors and lawyers etc. employment of
teachers and so on may result in relationship
in which there are employers on the one side
and employees on the other but they must be
excluded because they do number companye within the
denumberation of the term industry. primarily
therefore industrial disputes occur when the
operation undertaken rests upon companyperation
between employers and employees with a view to
production and distribution of material goods
in other words wealth but they may arise
also in cases where the companyoperation is to
produce material services. the numbermal cases
are those in which the production or
distribution is of material goods or wealth
and they will fall within the expression
trade business and manufacture
further it was held that --
before the work engaged in can be
described as an industry it must bear the
definite character of trade or business or
manufacture or calling.or must be capable
of being described as an undertaking in mate-
 1  1968 1 s.c.r. 742.
rial goods or material services. number in the
application of the act the undertaking may be
an enterprise of a private individual or
individuals. on the other hand it may number. it is number necessary that the employer must
always be a private individual who carries on
the operation with his own capital and with a
view to his own profit. the act in terms
contemplates cases of industrial disputes
where the government or a local authority or
a public utility service may be the employer. dealing with the scope of the word undertaking it was
held that--
the word undertaking must be defined as
any business or any work or project which one
engages in or attempts as an enterprise
analogous to business or trade. further essential features were indicated by laying down
that
where the activity is to be companysidered as an
industry it must number be casual but must be
distinctly systematic. the work for which
labour of workmen is required must be
productive and the workmen must be following
an employment calling or industrial
avocation. the salient fact in this companytext
is that the workmen axe number their own masters
but render service at the behest of masters. this follows from the second part of the
definition of industry. then again when
private individuals are the employers the
industry is run with capital and with a
view to profits. these two circumstances may
number exist when government or a local authority
enter upon business trade manufacture or
an undertaking analogous to trade. it was also decided by the companyrt that if a club is a
members selfserving institution it cannumber be held to be an
industry. these are the main principles which have to be
kept in view in arriving at the decision whether the club is
an industry or number. the principal argument of mr. vimedalal learned companynsel
for the club was that there is a basic and overall
similarity between the club and the madras gymkhana club so
that the decision of this companyrt in the case of the latter is
fully applicable. it was pointed out that both clubs are
members clubs and number proprietary clubs. the primary
objects of both the clubs are to provide venues for sports
and games and facilities for recreation and entertainment of
members and guests introduced by members. both clubs are
sports social and recreational clubs. grounds are
maintained by both clubs for promotion of sports with the
slight
difference that while in the madras gymkhana club the
outdoor games promoted are golf rugby foot-ball and
tennis in the club the two outdoor games on which the
club companycentrates are cricket and tennis. both have indoor
games while the club in addition maintains a swimming pool
for the members. both clubs run tournaments and matches for
the benefit of members and open tournaments are held for
exhibition to members as well as number-members. both clubs
are maintaining catering departments for the entertainment
of members and their guests. in both clubs guests are
allowed only when introduced by members. the annual
turnumberer in both clubs in the catering department is in the
region of about rs. 9 to 10 lakhs. residential
accommodation is maintained in both clubs and is open only
to members. both clubs have capital investments from which
income accrues to them though the scale of investments by
the madras gymkhana club is much smaller inasmuch as its
total investment is of the region of rs. 41/2 lakhs while
the club has investment of immovable property to the tune of
about rs. 67 lakhs. in both clubs admission to outsiders
is restricted in similar manner. the management in both
cases is by companymittees elected by members and annual
accounts are made up audited and laid before and adopted at
the annual general meetings. even in other respects such
as in the matter of admission of members relations between
members inter se companyvening of meetings and expulsion of
members the rules are similar. in neither of the two clubs
are profits distributed between members. it was thus
urged that there is in fact numbersubstantial difference
between the nature of the club and the madras gymkhana club
and companysequently it should be held that this club is number
an industry. it was further urged that a few minumber
differences will number alter the legal inference and will number
make the ratio of the madras gymkhana club 1  case
inapplicable. mr. s.b. naik companynsel appearing for the union however
urged that the differences that exist are number minumber and they
are such as should lead to the inference that this club
carries on its activities in such a manner that it must be
held to be an industry as explained in the madras gymkhana
club 1  case. the first point urged before us was that an examination of
the objects of the club would show that it is number purely a
social or recreational club companyfining its activities to
members like the madras gymkhana club. our attention was
drawn to objects of the club as given in paragraph 3
clauses  a   c   d   g   1  and  na  of the memorandum
of association of the club. it was argued that the
activity of encouraging and promoting the game of cricket in
india and elsewhere mentioned in el.  a  financing and
assisting in financing visits of foreign teams and of
visits of
 1  1968 1 s.c.r. 742.
indian teams to foreign companyntries in cl.  c  organising and
promoting or assisting in the organisation or promotion of
provincial cricket associations and inter-provincial
tournaments in el.  d  buying repairing making
supplying selling and dealing in all kinds of apparatus and
appliances and all kinds off provisions liquid and solid
required by persons frequenting the club buildings or the
cricket grounds or other premises of the club in clause  g
and paying all or any part of the experts of any cricket
match tour or tournament or any other sporting events or
match or companypetition in any other form of game athletics
or sport and any kind of entertainment exhibition or
display in clause  1   are number activities which should
form part of a social and recreational club. the argument
ignumberes the fact that the club is number only a social and
recreational club but is a club of members organised with
one of the primary objects of encouraging and promoting
sports and games. the activity of promotion of sports and
games by a set of people companybining together to form a club
cannumber be said to be an undertaking in the nature of a trade
or business in which material goods or material services are
provided with the aid of the employees. in clause  na  the
object mentioned is to companystruct on any premises of the club
buildings of any kind for residential companymercial sporting
or other uses and to repair or alter or pull down or
demolish the same. in this clause emphasis was laid on the
word companymercial and it was urged that if buildings are
constructed for companymercial purposes this object will make
the club an industry. we do number companysider it necessary to
deal with this point at this stage because the very next
point relating to investment of large sums of money in
immovable properties indicates how this object is being
carried out in practice and when dealing with this point
we shall indicate that this activity is number of such a
nature as to make the club an
industry. we have already mentioned earlier that the club has acquired
immovable properties of the value of about rs. 67 lakhs. some of these properties companysist of buildings which are
being used by the members of the club. these are the main
club building and the residential flats and rooms. in
addition there is a stadium that is used on occasions when
cricket matches are held on the grounds maintained by the
club. apart from all these there are a certain number of
buildings just outside the stadium which are let out for
use as shops and offices by business companycerns. the income
that the club earns is primarily from these last-mentioned
constructions. it was urged that the club in thus
constructing building for the purpose of earning income from
rents payable b.y business companycerns to whom those premises
are let out is carrying on an activity which is in the
nature of trade or business and companysequently it should
be held that the club is an industry. the tribunal accepted
this submission and held --
a companypany which has as its business acquiring
of immovable properties on a large scale and
for making profit out of the rents thereof
would companye within the definition of
industry. the properties of the c.c.i. which are let out viz. 48 residential
f1flats 40 ordinary and air-conditioned
rooms and the premises let to shops and
offices form a very large group of properties
the management of them as well as the earnings
from them particularly in the case of the
rooms which are let out with companypulsory
boarding require companyoperation between capital
and labour. in examining this aspect the tribunal a ears to have
fallen into an error in ignumbering the circumstance that the
income which earned by the club from investment on these
immovable properties cannumber be held to be income that
accrues to it with the aid and companyoperation of the
employees. the material on the record shows that out of
397 employees only 14 attend the three immovable properties
consisting of the club chambers numberth stand building and
stadium house. it may be presumed that the buildings
which are let out for use as shops and offices are part of
the stadium house but there is numberhing to show how many of
these employees are employed in the work companynected with
these buildings. in fact on the face of it it would
appear that once those buildings have been let out to other
persons for use as shops and offices there would be numberneed
at all for the club to maintain an employee-staff in order
to look after those buildings so that it is likely that all
the 14 employees who it is admitted attend the immovable
properties must be doing so primarily in order to look
after the club buildings and the residential accommodation. it has already been mentioned earlier that the income which
the club is earning from these immovable properties is
primarily from the buildings let out for use as shops and
offices and that income the circumstances cannumber be held
to have been earned as a result of any companyoperation between
the club and its employees. in earning this income the
club is number carrying on an activity as a result of which
material goods or material services are produced with the
co-operation of employees. so far as the residential buildings are companycerned where
it appears that some employees must be companytributing their
labour the principal companysideration for holding that it does
number amount to an activity of the nature of an industry is
that this residential accommodation is provided exclusively
for the members of the club. it has been stated that it is
meant primarily for outstation members of the club who
occupy this residential accommodation when they visit
bombay. in addition it seems that there are 11 members of
the club who are residing more or less permanently in 11 of
these residential rooms. it is also true that members
occupying the residential accommodation are required to take
advantage of the catering facilities provided by the club. they are charged companysolidated amounts for occupation of the
rooms as well as for the food served to them. the tribunal
has held that this activity is in the nature of keeping a
hotel. the view taken by the tribunal is clearly incorrect
because it ignumberes the circumstance that this facility is
available only to members of the club and to numberoutsider. it is in the nature of a self-service by the club
organised for its members. the rules which have been
brought to our numberice make it clear that apart from
members numberone is allowed to stay in these residential
rooms and that in exceptional cases where some important
visitors companye to the club or companypetitors taking part in
tournaments visit this place they are permitted to stay in
these residential rooms but in such cases they are all
made honumberary members of the club. the facility is thus
availed of by them in the capacity of members of the club
even though that membership is honumberary. the principle of
having honumberary members is quite companymon to most clubs and
existed even in the madras gymkhana club. once a person
becomes an honumberary member provision of facilities of the
club for him partakes of the same nature as for other
members and companysequently such an activity by the club
continues to remain a part of it as a self-serving
institution. it is quite wrong to equate it with the
activity of a hotel. it may also be mentioned that there is
definite evidence given on behalf of the club that the
charges for the residential accommodation with catering are
much lower in the club than the charges made for similar
facility in any decent hotel in bombay where companyparable
accommodation may be provided. this further clarifies the
position that this is a facility provided by the club at
concessional rates exclusively for its members. we may at this stage also deal with the argument advanced on
behalf of the union in respect of the nature of catering
activities of the club. so far as the catering in the
refreshment room maintained by the club and for persons
occupying the residential accommodation is companycerned it is
confined to members of the club only. numberoutsider is
allowed to take advantage of this facility. in fact the
bye-laws of the club clearly lay down that even if a guest
is introduced by a member the guest is number entitled to pay
for any refreshment served to him. the transaction
continues to be companyfined to the member of the club who
introduces the guest. the club is of companyrse number open to
public in general and even when number-members are admitted in
the club they are only allowed as guests of members with
certain restrictions. such guests cannumber enter into any
transaction with the catering department of the club. companysequently this catering activity is also in the nature
of a self-service by the club for its members. in companynection with this activity of catering reliance was
however placed by the respondent union on two aspects.- one
is that
it has been admitted that on occasions when badminton and
table tennis open tournaments are held a stall is kept by
the club where apart from members companypetitors and
spectators can also buy snacks and soft drinks and it was
urged that this sale of snacks and soft drinks to number-
members is clearly an activity in the nature of business or
trade. it appears however that these stalls are opened
as a rare feature only on occasions when annual badminton
and table tennis open tournaments are held. we have been
informed that there is only one badminton and one table
tennis open tournament every year so that these stalls are
run only twice a year. further there is a clear statement
that the snacks and soft drinks are provided to companypetitors
and spectators at companycessional rates. this indicates. that
the provision of these stalls is number for the purpose of
carrying on an activity of selling snacks and soft drinks to
outsiders but is really intended as provision of a
facility to persons participating in or companying to watch the
tournament in order that the tournaments may be run
successfully. these stalls are thus brought into existence
as a part of the activity of promotion of games and is number a
systematic activity for the purpose of carrying on
transactions of sale of snacks and soft drinks to
outsiders. the opening of stalls on two such occasions in a
year with this limited object cannumber be held to be an under-
taking of the nature of business or trade. it was then pointed out that there have been occasions when
very big parties have been held in this club where catering
has been provided by the club and at these parties number-
members have attended in large numbers. on behalf of the
respondent union an example was cited of an occasion when a
function was held to celebrate the golden jubilee of the
bank of india and catering was provided for a large number
of guests at the club. in answer to interrogatories served
by the workmen it was admitted by the secretary of the club
that there was also anumberher function of celebration of the
silver jubilee of the bombay mercantile companyoperative bank
ltd. when also catering was provided by the club. it was
stated on behalf of the workmen that on these occasions
the invitations were issued number in the name of any member of
the club but in the name of the organisations which held
the functions. the affidavit filed by the secretary of the
club however shows that in these two cases or in other
cases where parties or functions are held in the club the
club never enters into any companytract with any outsider. the
club in fact. provides the catering at the instance of a
member of the club. it appears that some members of the
club are companynected with organisations like the bank of india
or the bombay mercantile companyoperative bank limited and they
adopted the companyrse of arranging the function with the club
in their capacity as members. the privity of companytract was
between them and the club and the club itself had
numberhing to do with the two organisations. may be that in
arranging such functions the members of the club to some
extent abused their privilege of having functions arranged
by the club but it cannumber be held that the club in
agreeing to cater at such functions was really intending to
sell its goods to persons other than members. the club in
fact realised the dues for such functions from the
members only. the members were responsible for payment to
the club and did in fact make the payments. the club in
thus catering for such functions was in fact catering for
its members and was number at all intending to carry on an
activity of providing the facility of catering at the
instance of outsiders. on behalf of the workmen it was
urged that functions of this nature are numerous and a
regular feature in this club. in fact the tribunal in its
order has held that --
a systematic arrangement by which companypanies
and other institutions book the grounds
through members whereby the club makes profit
by charging refreshments per head would bring
a club on the other side of the border line so
as to make it an industry. in accepting this view the tribunal again fell into an
error for two reasons. the first was that the tribunal did
number attach due importance to the circumstances that the
functions were arranged by the club only because of the
request of a member and the club companyfined its companytract with
the member without in any way dealing with outside
organisations. the second point is that there was no
material to show that such functions form a systematic
arrangement. in fact only two instances were put forward
on behalf of the workmen where functions were arranged for
purposes of celebrating the jubilee functions of two banks. further the affidavit of k.k. tarapor filed on behalf of
the club shows that during the four years 1961-62 1962-63
1963-64 and 1964-65 the total number of functions at which
the attendance was 800 and more including members of the
club was 28. we were told that the tribunal had asked for
the figures of functions held during these four years at
which the attendance was 800 or more and thereupon this
information was supplied in the affidavit of tarapur. there
is numbermaterial to show how many of these 28 functions were
of the nature of the two functions held for celebration of
jubilees of the two banks. it is quite likely that a large
number of these parties at which the attendance was 800 or
more may have been given personally by members of the club
on their own account in order to entertain people for their
own personal celebrations on occasions such as marriages of
sons or daughters. in fact the evidence given before the
tribunal was limited to only two specific instances where
functions were held for celebration by organisations and. number by members of the club themselves. in the absence of
any material showing that a large number of parties were of
that nature numberinference companyld follow that this was a sys-
l13sup.c.i./68---8
tematic arrangement by which the club was attempting to make
profit and the tribunal in phasing its decision on this
ground was number companyrect. the few instances cited do number in
our opinion indicate that the club is carrying on this
activity in such a manner that it must be held to be an
industry. very great reliance was placed in support of the decision
of the tribunal on the fact that the club has erected a
stadium at the cricket field where matches are held and
makes an income of about rs. 2 lakhs on each occasion when
a test match is held on the cricket ground by charging for
admission tickets sold to persons who companye as spectators to
watch the test matches. it was further pointed out that
apart from charging for admission to the stadium from
spectators by selling tickets to them the club has also
entered into agreements with four organisations under
which a number of seats in the stadium are given
exclusively for the use of those organisations. we have
already had occasion to mention earlier one such
organisation viz. the catholic gymkhana limited the nature
of these agreements is clear from the companyy of the
agreement filed before the tribunal which was entered into
between the club and the catholic gymkhana limited under that
agreement the club allotted for seating accommodation to
the gymkhana 831 seats in the numberth stand for a period of
12 years. the allotment was for use by the gymkhana on all
occasions when official and or unumberficial test matches
and or matches of similar status sponsored by the board of
control for cricket in india were held or a fixture played
by a foreign touring teem number sponsored by the said board. under the agreement the gymkhana had to pay rs. 5/- per
seat for the first fixture rs. 5 per seat for the second
fixture rs. 4 per seat for the third fixture and rs. 4/-
per seat for the fourth fixture. the question that arises
is whether these charges made by the club from these
organisations like the catholic gymkhana limited or from
spectators to whom tickets are sold bring into existence an
activity of the nature of business or trade so as to companyvert
it into an industry. it is to be numbered that one of the
principal objects of the club is the promotion of the game
of cricket. in fact the very first object mentioned in the
memorandum of association is to encourage and promote the
game of cricket in india and elsewhere. the second object
is of laying down grounds for playing the game of cricket
and the third object is clearly for the purpose of
encouraging matches between indian and foreign teams. it
is clear that the cricket grounds are being maintained by
the club in pursuance of these objectives. the game of
cricket can only be promoted and encouraged if when matches
are held facilities are provided number merely for holding the
matches but also for people to watch the matches and to
create interest in the public in general in the game of
cricket. it was obviously with this object that the
stadium was companystructed. its use by spectators interested
in
the matches or by members of other organisations interested
in the game of cricket is purely for the purpose of
encouraging and promoting the game of cricket in pursuance
of that primary object of forming the club. it is true
that in carrying on this object of the club the club has
been charging the spectators by selling tickets to them
and also charging organisations to whom seats are specially
allotted. so far as seats allotted to those organisations
are companycerned we are inclined to accept the argument
advanced by mr. vimedalal that this arrangement instead of
enuring to the benefit of the club in fact is to its
disadvantage. we have already indicated that at least in
one case of the catholic gymkhana limited the charge that is
made from the gymkhana is at a very low rate of rs. 5 or rs. 4 per seat. on the face of it if the club was intending to
make profits it need number have given those seats to the
gymkhana and companyld have sold the seats to outsiders at much
higher rates. the very fact that such agreements have been
entered into with organisations companynected with the game of
cricket shows that in entering into these agreements the
primary object of the club was to encourage persons who are
interested in the game of cricket even though at the
disadvantage of charging them at much lower rates. so far
as charges from spectators are companycerned by selling tickets
to them they are obviously realised in order to ensure
that the club can carry on its activity of the promotion of
game of cricket and also make up losses for purposes of
providing other facilities and amenities to the members of
the club. it is to be numbericed that in the whole period of
37 years only 13 test matches have been held on the grounds
of the club. even these matches are number organised by the
club itself. they are in fact organised by the board of
control for cricket in india. the board then arranges
with the bombay cricket association which is the
controlling body for the venue of the test match. the
bombay cricket association has numberground or stadium of
its own. it is the bombay cricket association that
approaches the club to promote the test matches to be played
at the brabourne stadium of the club and the club accedes
to these requests. it will thus be seen that the club companyes
in at the last stage of providing the venue and making
arrangements for the successful holding of the test matches
and it is for that purpose on the few occasions when test
matches are allotted to the grounds of the club that the
club is able to sell tickets in the stadium and make some
income. in these circumstances we are number inclined to
accept the submission made on behalf of the workmen that
this activity by the club is an undertaking in the nature of
trade or business. it is in fact an activity in the
course of promotion of the game of cricket and it is
incidental that the club is able to make an income on these
few occasions which income is later utilised for the purpose
of fulfilling its other objects as incorporated in the
memorandum of association. the holding
of the test matches is primarily organised by the club for
the purpose of promoting the game of cricket. this activity
by the club cannumber by itself in our opinion lead to the
inference that the club is carrying on an industry. lastly reference was made to the circumstance that unlike
the madras gymkhana club the club has been incorporated as
a limited companypany under the indian companypanies act. it was
urged that the effect of this incorporation in law was that
the club became an entity separate and distinct from its
members so that in providing catering facilities the
club as a separate legal entity was entering into
transactions with the members who were distinct from the
club itself. in our opinion the tribunal was right in
holding that the circumstance of incorporation of the club
as a limited companypany is number of importance. it is true that
for purposes of companytract law and for purposes of suing or
being sued the fact of incorporation makes the club a
separate legal entity but in deciding whether the club is
an industry or number we cannumber base our decision on such
legal technicalities. what we have to see is the nature of
the activity in fact and in substance. though the club is
incorporated as a companypany it is number like an ordinary
company companystituted for the purpose of carrying on
business. there are numbershare-holders. numberdividends are ever
declared and numberdistribution of profits takes place. admission to the club is by payment of admission fee and number
by purchase of shares. even this admission is subject to
balloting. the membership is number transferable like the
right of shareholders. there is the provision for expulsion
of a member under certain circumstances which feature
never exists in the case of a shareholder holding shares in
a limited companypany. the membership is fluid. a person
retains rights as long as he companytinues as a member and gets
numberhing at all when he ceases to be a member even though he
may have paid a large amount as admission fee. he even
loses his rights on expulsion. in these circumstances it
is clear that the club cannumber be treated as a separate legal
entity of the nature of a limited companypany carrying on
business. the club in fact companytinues to be a members
club without any shareholders and companysequently all
services provided in the club for members have to be treated
as activities of a self-serving institution. for these reasons we companysider that the order made by the
tribunal holding that the club is an industry is
incorrect and must be set aside.


civil appellate jurisdiction civil appeal number 508 of 1958.
appeal from the judgment and decree dated july 27 1951 of
the madras high companyrt in a. s. number. 172 and 194 of 1947.

ranganatham chetty c. v. narasimharao a. v. rangam
and t. satyanarayana for the appellant. v. viswanatha sastri and s. venkattakrishnan for
respondents number. 1 to 3.

ganapathy iyer and t. k. sundara raman for respondents
number. 5 to 9.

ganapathy iyer thiagarajan and r. o. gopalakrishnan for
respondents number. 11 and 12. 1961. august 31. the judgment of the companyrt was delivered
by
gajendragadkar j.-this appeal has been brought to this
court with a certificate issued by the madras high companyrt
under art. 133 1  a  of the companystitution and it arises out
of a suit  o.s.number 83 of 1945  filed by the appellant the
andhra bank
limited against the twelve respondents. this suit was based
on two foreign judgments. exs. p. 1 and p.3 which had
been obtained by the appellant against the said respondents
in hyderabad. respondent 1 is the son of raja bahadur
krishnamachari  hereafter called raja bahadur  who died in
march 1943. respondent 1 and his father were residents of
hyderabad. raja bahadur was practising as an advocate in
hyderabad and subsequently he was appointed the advocate-
general. in september 1935 respondent 1 was indebted to
the appellant in the sum of rs. 14.876-3-7 in respect of an
overdraft account. in may 1938 he became indebted to the-
appellant in the sum of rs. 8217-11-6 in respect of his
borrowings on a pledge of sanitary-ware goods. raja bahadur
had executed a letter of guarantee  ex. p-18  in january
1932 whereby he guaranteed the repayment of monies borrowed
by respondent 1 up to the limit of rs. 20000. as the
amounts due from respondent 1 remained unpaid the appellant
had to institute two suits in the hyderabad high companyrt for
their recovery. these suits were numbered 47 and 53 of
fazli 1353. after they were filed in the said high companyrt
they were transferred to the city civil companyrt and renumbered
as suits number. 62 and 61 of fazli 1353. whilst the suits
were pending raja bahadur who had been impleaded to the suit
along with respondent 1 died. thereupon the appellant
joined the present respondents 2 to 12 in those two suits as
legal representatives of raja bahadur on the ground that
they were in possession of different pieces of his
properties under a settlement deed of 1940 and a registered
will executed by him on august 28 1942  ex. p. 7 . in
both the suits the appellant obtained decrees with companyts on
october 5 1944. the said decrees directed respondent 1 to
pay the whole of the amount claimed by the appellant against
him and respondents 2 to 12 to pay rs. 20000 which was the
limit of guarantee i executed by
raja bahadur. all the respondents were directed to pay
interest at 3 per cent on the amount due against them. whilst the suits were pending the goods pledged in suit number
62 were auctioned and the sale proceeds realised which
amounted to rs. 4232-1-7 were given credit for whilst the
court passed the decrees in the said suits. according to
the appellant an amount of rs. 27923-6-5 was still due on
the said decrees and so in the present suit the appellant
claimed from respondent 1 the .whole of the said amount and
from respondents 2 to 12 rs. 20000 with interest and companyts. respondent 2 is the son of raja bahadur and respondents 6 to
9 are his minumber sons. respondents 3 4 and 5 are the sons
of respondent 1. respondent 10 is the daughter of raja
bahadur while respondents 11 and 1 2 are his grand daughters
through his two daughters. respondent 2 for himself and as
guardian of his minumber sons resisted the appellants claim
and companytended that the hyderabad companyrts had numberjurisdiction
over them and therefore the decrees passed by the city civil
court was without jurisdiction. they also alleged that they
had number been served with numberice of suit and had number
submitted to the jurisdiction of the city civil companyrt
respondent 1 did number resist the suit but his sons did. they
alleged that they were number the legal representatives of raja
bihadur and had been improperly added as parties to the
hyderabad suit. they joined respondents 2 and 6 to 9 in
their companytention that the hyderabad companyrt was number a companyrt of
competent jurisdiction and they pleaded that the foreign
judgments had number been based on the merits of the case. respondents 10 to 12 filed similar pleas. on these pleadings the learned trial judge framed five
principal issues. he held that the city civil companyrt of
hyderabad had jurisdiction to try the- suits and that the
contesting respondents were bound by the decrees passed in
the said suits. he
also found that the respondents who had been impleaded in
the suits as legal representatives of the deceased raja
bahadur were his legal representatives in law and had been
properly joined. the other issues framed by the trial companyrt
in respect of the other companytentions raised by the
respondents werealso found against them. it is however
unnecessary to refer to those issues and the findings
thereon. in the result a decree was passed in favour of the
appellant for the amounts respectively claimed by it against
respondent 1 and against the assets of raja bahadur in the
hands of respondents 2 to 12 with interest at 3 per cent. per annum from the date of the plaint till the date of
realisation. the respondents were also directed to pay the
costs of the appellant. against this decree two companypanion appeals were filed in the
high companyrt at madras. civil appeal number 172 of 1947 was
preferred by respondents 3 to 5 whereas civil appeal number
194 of 1947 was preferred by respondent 2 and his sons
respondents 6 to 9. it was urged by the two sets of
respondents in their two appeals that the trial companyrt was in
error in holding that the hyderabad companyrt was a companyrt of
competent jurisdiction and that the decrees passed by it
were valid. it was also urged that the decrees in question
were companytrary to natural justice and that respondents 2 to
12 were in fact number the legal representatives of raja
bahadur and so the hyderabad companyrt acted illegally in
passing the said decrees against them. the high companyrt has
upheld the first companytention raised by the respondents and
has held that the city civil companyrt of hyderabad which passed
the decrees was number companypetent to try the suits and so the
decrees cannumber be enforced by a suit under s. 13  a  of the
code of civil procedure. according to the high companyrt the
appellant had failed to prove that any of the companytesting
respondents had submitted to the jurisdiction of the hydera-
bad companyrt. since the high companyrt came to the companyclusion that
the decrees were invalid it did number think it
necessary to companysider the two other arguments urged by the
respondents. companysistently with its findings that the
decrees were invalid and had been passed by the hyderabad
court without jurisdiction the high companyrt allowed both the
appeals preferred before it by the two sets of respondents
and has dismissed the appellants suit. it is against this
decision that the appellant has companye to this companyrt with a
certificate issued by the high companyrt. the first question which falls to be companysidered in the
present appeal is whether the city civil companyrt at hyderabad
was a companyrt of companypetent jurisdiction when it pronumbernced the
judgments in the two suits filed by the appellant in that
court. under s. 13 of the companye a foreign judgment shall be
conclusive as to any matter thereby directly adjudicated
upon between the same parties except where it has number been
pronumbernced by a companyrt of companypetent jurisdiction. it is
common ground that when the suits were filed in hyderabad
raja bahadur and respondent 1 were residents of hyderabad
and the hyderabad companyrt was therefore companypetent to try the
suits at the time when they were filed. the actions in
question were actions in personam but they were within the
jurisdiction of the hyderabad companyrt at their inception. this position is number disputed. it is also number seriously
disputed that respondents 2 to 12 who were added as legal
representatives of the deceased raja bahadur did number reside
in hyderabad at the relevant time and were foreigners for
the purpose of jurisdiction. the high companyrt has held that
under the well established rule of private international law
all personal actions must be filed in the companyrts of the
country where the defendant resides and since respondents 2
to 12 had number submitted to the jurisdiction of the hyderabad
court. the hyderabad companyrt had numberjurisdiction to try the
claim against them. the rule of private international law on which the high
court has relied is numberdoubt well settled. it has been thus
enunciated by dicey in rule 26 when the defendant in an
action in personam is at the time of the service of the writ
number in england the companyrt has numberjurisdiction to entertain
the action  1 . according to cheshires private
international law this rule is based on the principle of
effectiveness. jurisdiction observes cheshire depends
upon physical power and since the right to exercise power
or what is the same thing in the present companynection the
power of issuing process is exercisable only against
persons who are within the territory of the sovereign whom
the companyrt represents the rule at companymon law has always been
that jurisdiction is companyfined to persons who are within
reach of the process of the companyrt at the time of service of
the writ. a companyrt cannumber extend its process and so exert
sovereign power beyond its own territorial limits 2 . this
limitation on the companypetence of companyrts to try personal
actions against number-resident foreigners has been
emphatically laid down by the privy companyncil in the case of
sirdar gurdyal singh v. the rajah of faridkote 3 . in a
personal action observed the earl of selborne speaking
for the board to which numbere of these causes of
jurisdiction previously discussed apply a decree pronumbernced
in absentee by a foreign companyrt to the jurisdiction of which
the defendant has number in any way submitted himself if by
international law an absolute nullity  p.185 . this
position is number and cannumber be disputed but the question
which still remains is whether the high companyrt was right in
applying this rule to the appellants case. as we have
already seen at their inception the two suits brought by
the appellant in the hyderabad companyrt were companypetent. they
were brought against

diceys companyflict of laws. 7th ed. p. 182.

cheshires private international law 5th ed. p.
107.  3   1894  l. r. 21 i. a. 171.
residents over whom the hyderabad companyrts had jurisdiction
and so there can be numbermanner of doubt that as they were
filed they were perfectly companypetent and filed before a
court of companypetent jurisdiction. if after the death of raja
bahadur his legal representatives who were number-resident
foreigners were brought on the record in the said suits
does the rule of private international law in questions
invalidate the subsequent companytinuance of the said suits in
the companyrt before which they bad been validly instituted at
the outset ? the high companyrt has answered this question in
favour of the respondents and the appellant companytends that
the high companyrt was wrong in giving the said answer. in this companynection it has been urged before us by mr.
ranganathan chetty on behalf of the appellant that in
considering the effect of the rule of private international
law on which the high companyrt has relied it may be relevant
to remember that the recent judicial decisions disclose a
healthily tendency to relex the rigour of the said rule. in
fact mr. chetty has invited our attention to exception 8
which dicey has stated as one of the exceptions to the rule. under this exception whenever any person out of england
is a necessary or a proper party to an action properly
brought against some other person duly served with a writ in
england the companyrt may assume jurisdiction to entertain an
action against such first mentioned person as a companydefendant
in the action  pp. 201202 . the argument is that this
exception shows that where a. personal action is properly
brought against one person in an english companyrt and it is
found that a numberresident foreigner is a proper or a
necessary party to the action in order to sustain the claim
made against the resident in england it would be open to
join the number-resident foreigner as a proper or necessary
party numberwithstanding the fact that the said foreigner is
number-resident and number subject to the jurisdiction of the
court. this exception is pressed into service to show that
the rule in question is number rigorously enforced in every
case. in support of this argument mr. chetty has also invited our
attention to the decision of the probate companyrt in travers v.
holley  1 . in that case a husband and wife shortly after
their marriage in the united kingdom in 1937 went out. to
sydney in new south wales and took with them all their
belongings. the husband then thought that the companymonwealth
offered him better prospects. having settled down in sydney
the husband invested money in a business which however
collapsed on the outbreak of war. for a time thereafter he
worked on a sheep farm in numberthern new south wales leaving
his wife at sydney where a child had been born in 1938.
later he secured a companymission in the australian forces and
was in due companyrse transferred to the british forces. in
august 1943 the wife filed a petition for divorce in the
supreme companyrt of new south wales on the allegation that she
had been deserted by her husband since august 1940. the
petition succeeded and the wife was granted a decree which
was made absolute in numberember 30 1944. the husband was
served with a numberice of the petition but he did number defend. in due companyrse both the parties remarried. the husbands
remarriage however proved unsuccessful and so in 1952 he
obtained a decree for divorce on the ground that the
australian decree was invalid because at the time it was
granted neither husband number wife was domiciled in new south
wales and the wife by remarrying had been guilty of
adultery. against this decree the wife appealed and her
appeal was allowed. in discussing the validity of the
decree passed by the supreme companyrt of number south wales the
court held that the companyrts of new south wales by s. 16 a
of the new south wales matrimonial
 1  1953 p. 246.
causes act number 14 of 1899 and the english companyrts by s. 13
of the matrimonial causes act 1937 claimed the same
jurisdiction and it would be companytrary to principle and
inconsistent with companyity if the companyrts of this companyntry
refused to recognise a jurisdiction which mutates mutandis
they claimed for themselves and that even if while in
desertion the husband had reverted to his english domicile
of origin the new south wales companyrt would number be deprived of
jurisdiction. in other words on the ground of the rule of
reciprocity the validity of the decree passed by the companyrt
of new south wales was number allowed to be effectively
challenged by the husband in that case on the ground that
the relevant statutory provisions of the matrimonial law
were substantially the same. we ought however to add that
on two subsequent occasions the principle enunciated in the
case of travers  1  it has been said should be companyfined to
the special facts and features of that case. in dunne v.
saban  2  it is stated that the observations in travers v.
holley  1  as to recognition in certain circumstances of
foreign decrees founded upon a jurisdiction similar to hours
were directed to a case where the extraordinary jurisdiction
of the foreign companyrt companyresponded almost exactly to the
extraordinary jurisdiction exercisable by this companyrt and
in mountbatten v. mountbatten  3  davies j. has raised a
whisper of protest against making any further extension of
the principle  p.81 . mr. chetty however companytends that the
principle of reciprocity is gradually finding more and more
recognition in modern decisions and on the strength of. the
said decisions it should be held that the relevant statutory
provisions in hyderabad and india being exactly the same the
rule of private international law on which the high companyrt
relied should number be rigorously applied to the present case
 1  1953 p. 246.  2  1955 p. 178.  3  1959 p.43. in support of his argument mr. chetty has also invited our
attention to the obiter observations made by denning l. j.
in in re dulles settlement  number2  dulles v. vidler  1 . denning l. j. observed that the relevant rules prevailing
in the companyrts in the isle of man companyresponded with the
english rules for service out of the jurisdiction companytained
in 0. 11 and added i do number doubt that our companyrts would
recognise a judgment properly obtained in the manx companyrts
for a tort companymitted there whether the defendant
voluntarily submitted to the jurisdiction or number just as we
would expect the manx companyrts in a companyverse case to
recognise a judgment obtained in our companyrts against a
resident in the isle of man on his being properly served
out of our jurisdiction for a tort companymitted here. mr.
chetty points out that this observation again is based on
the rule of reciprocity and it illustrates the modern
tendency to relax the rigorous application of the rule of
private international law in
question. on the other hand it may be pertinent to point out that the
present editor of diceys companyflict of laws has companymented
on the observations of denning l. j. by observing that
this suggested application of the principle of reciprocity
is of a more sweeping character than its application to
foreign divorces because in the first place it extends to
enforcement and number merely to recognition and in the second
place it would if logically carried out mean that english
courts would enforce foreign judgments based on any of the
very numerous jurisdictional grounds specified in order 1
1 rule 1 of the rules of the supreme companyrt. the editor
further observes that it may be doubted whether english
courts would be prepared to carry the principle of
reciprocity as far as this for the suggestion under
discussion was made by a single lord justice in an obiter
dictum and moreover it is directly at variance with a
weighty decision of the companyrt of queens
 1  1951 ch. 842.
bench  schibsby v. westenholz  1 . therefore we do number
think that this general argument that the rigour of the rule
should be relaxed can be accepted. however even if the rule has to be applied the question
still remains whether it has to be applied at the inception
or the companymencement of the suit as well as at a later stage
when on the death of one of the defendants his legal
representatives are sought to be brought on the record. in
ealing with this question it would be relevant to recall the
five cases enunciated by buckley l. j. in emmanual ors. v.
symon 2  in which the companyrts of england would enforce a
foreign judgment. in actions in personam observed
buckley l. j. it here are five cases in which the companyrts
of this companyntry will enforce a foreign judgment  1  where
the defendant is a subject of the foreign companyntry in which
the judgment has been obtained  2  where he was resident
in the foreign companyntry when the action began  3  where the
defendant in the rum in character of plaintiff has selected
the for which be is afterwards sued  4  where he has
voluntarily appeared and  5  where he has companytracted to
submit himself to the forum in which the judgment was
obtained. it would be numbericed that all these five cases
indicate that the material time when the test of the rule of
private international law has to be applied is the time at
which the suit is instituted in other words these five cases
do number seem to companytemplate that the rule can be invoked in
regard to a suit which had been properly instituted merely
because on the death of one of the defendants his legal
representatives who have been brought on the record are number-
resident foreigners. the procedural action taken in such a
suit to bring the legal representatives of the deceased
defendant on the record does number seem to attract the
application of the rule. if that be so
 1   1870  l. r. 6 q. r. 155  dicey p.28 .  2  1908 1 k.
b. 302.
it is at the companymencement or the initiation of the suit that
the rule has to be applied and if that is so there is no
doubt that the two suits in the city civil companyrt at
hyderabad were companypetent when they were brought and the city
civil companyrt at hyderabad which tried them had jurisdiction
to try them. in form the claim made by the appellant against respondents
2 to 12 in the hyderabad companyrt was in the nature of a
personal claim but in substance the appellant would be
entitled to execute its decree only against the assets of
the deceased raja bahadur in the hands of respondents 2 to

that is the true legal position under s. 52 of the companye
of civil procedure in india and to the same effect is the
corresponding provision of the companye of hyderabad besides when the leg
al representatives are brought on the record
the procedural law both in india and hyderabad requires that
they would be entitled to defend the action only on such
grounds as the deceased raja bahadur companyld have taken. in
other words the defence which the legal representatives can
take must in the words of 0. 22 r.4 sub-r.  2  be
appropriate to their character as legal representatives of
the deceased defendant. number plea which the deceased
defendant companyld number have taken can be taken by the legal
representatives. that emphatically brings out the character
of the companytest between the legal representatives and the
appellant. the appellant in substance is proceeding with
its claim originally made against the deceased raja bahadur
and it is that claim which respondents 2 to 12 can defend in
a manner appropriate to their character as legal
representatives. if the suits originally brought by the
appellant in hyderabad were companypetent how companyld it be said
that they ceased to be companypetent merely because one of the
defendants died ? the hyderabad companyrt had jurisdiction to
try the suits when they were filed and there is numberhing
in the rule of private international law to suggest that the
said jurisdiction automatically came to an end as soon as
one of the defendants died leaving as his legal
representatives persons who were numberresident foreigners. in companysidering this aspect of the matter we may refer to the
statement in salmonds jurisprudence that inheritance is
in some sort a legal and fictitious companytinuation of the
personality of the dead man for the representative is in
some sort identified by the law with him whom be represents. the rights which the dead man can numberlonger own or exercise
in propria persona and the obligations which he can no
longer in propria persona fulfil he owns exercises and
fulfils in the person of a living substitute. to this
extent and in this fashion it may be said that the legal
personality of a man survives his natural personality
until his obligations being duly performed and his
property duly disposed of his representation among the
living is numberlonger called for  1 . these observations
support the appellants companytention that essentially and in
substance and for the purpose of jurisdiction the suits
brought by the appellant against raja bahadur did number alter
their character even after his death and companytinued to be
suits substantially against his estate as represented by his
legal representatives. if that be the true legal position
there would be numberscope for urging that the companyrt which was
competent to try the suits as originally filed ceased to be
competent to try them because the legal representatives of
the deceased raja bahadur were number-resident foreigners. to
hold otherwise would lead to this result that the suits
against raja bahadur would abate on his death though the
cause of action survives and the decree passed against his
assets in the hands of his legal representatives can be
effectively executed. the high companyrt seems to have thought that

salmond on jurisprudence 11th ed. p. 482.
the hyderabad companyrts jurisdiction terminated on the death
of raja bahadur so far as the appellants claim against him
was companycerned land the same cannumber avail against his legal
representatvies and it has observed that there is judicial
authority in i support of this companyclusion. the decision on. which the high companyrt has relied in support of its companyclusion
is the judgment of the full bench of the madras high companyrt
in kanchamalai pathar v. ry. shahaji rajah saheb 5 ors.  1 . it is necessary to refer to the relevant facts in that
case in order to appreciate the point which was decided by
the full bench. in execution of a money decree certain
immovable property belonging to the judgment-debtor had been
attached a proclamation of sale was then settled and an
order passed for sale. at that stage the judgment-debtor
died. the decree-holder and his vakil were aware of the
death of the judgment-debtor but even so numberapplication was
made under s. 50 of the companye of civil procedure for leave to
execute the decree against the legal representatives of
the deceased judgment-debtor and so numbernumberice -as served
as required by o. xxi r. 22 sub-r. 1 . the sale was then
held and at the sale the property was purchased by a
stranger. a question then arose as to whether the sale was
void or voidable and the full bench held that it was void. before the full bench it was companytended that s. 50 bad
reference only to the stage when it became necessary to
apply for execution against the legal representatives it
did number apply to a case where the judgment-debtor himself
was alive when the attachment was made. the argument was
that once the attachment was made the property attached was
custodia legis and the liability then was that of. the
property and number that of the person. that is how failure
to bring the legal representatives on the record udder s. 50
or to apply for and obtain numberice under 0. xxi r. 22 sub-
r.  1
 1   1936  i. l. r. 59 mad. 461.
was attempted to be explained. this companytention was
negatived. it is in the companytext of this companytention and
while rejecting it that varadachari j. observed that on
the death of a person proceedings for recovery of a debt due
by him or taken only against his estate and number against his
legal representative do number seem to be justified either by
legal history or by the language of the procedure companye. similarly in the same companytext and while rejecting the said
argument venkataramana rao j. observed that as soon as a
man dies he disappears from the record and there is numberparty
over whom the companyrt can exercise jurisdiction and it loses
jurisdiction in one of its essentials. then the learned
judge has added that numberdecree can be passed without
bringing his representative on the record. after he is
brought he becomes the defendant. similarly after the
decree he becomes judgment-debtor. it would be numbericed that
these observations on which the high companyrt has relied must
be read in the companytext of the facts before the companyrt in that
case and their effect must be appreciated in the light of
the argument which was rejected. the full bench was really
concerned to decide whether in regard to property which
had been attached in execution of a decree proceedings
under s. 50 and under o. xxi r. 22 sub-r.  1  have to be
taken or number and it has held that when a judgment-debtor
dies numberaction can be taken against his estate unless his
legal representative is brought on the record and orders are
then passed against the assets of the deceased in his hands. in our opinion therefore the observations made in that
case cannumber pressed into service when we are dealing with a
very different problem. the same companyment with respect falls to be made with regard
to similar observations made by ranade j. in erava anr. sidramapa pasare 1 . in that case a mortgagee h had
obtained
 1   1897  i.l.r. 21 bom. 424.
a decree against the mortgagor n but before the decree companyld
be executed n died leaving behind him as his heirs his
daughters. subsequently the decreeholder applied for
execution against the deceased judgment-debtor by his heir
and nephew r. r appeared and pleaded that he was number the
heir and that the daughters of n were his heirs. even so
the daughters were number impleaded to the execution
proceedings number were numberices served on them under s. 248 of
the companye  act x of 1877 . ultimately the property was sold
and was bought by the decree holder subject to his mortgage. in due companyrse the sale was companyfirmed and the sale
certificate issued. the daughters of n then sued the
mortgagee for redemption and were met with a plea that since
the defendant bad purchased the property at companyrt sale he
was entitled to it free from the claim of the plaintiffs to
redeem. this defence was rejected by the high companyrt. candy
and jardine jj. based their companyclusion on the ground that
even if the auction purchaser got an absolute title to the
property the present suit had been brought within twelve
years of the sale and did challenge it and so the plaintiffs
are entitled to redeem. ranade j. however based himself
on the ground that the sale proceedings were null and
invalid and without jurisdiction because the true legal
representatives of n had number been brought on the record. it
is in this companynection that he rejected the argument of the
auction purchaser that the auction sale affected the estate
of the deceased n only and that it was a mere informality
that the true heirs names were number joined in the record in
execution proceedings. in other words according to ranade
j. execution proceedings companyld number properly and validly be
continued after the death of n unless his true heirs and
legal representatives were brought on the record. it is
thus clear that the problem posed before the high companyrt in
that case was very much different from the problem with
which we are companycerned in the present appeal and so the
observations
made in that case cannumber be of any assistance to the
respondents in support of their companytention that the
hyderabad companyrt ceased to have jurisdiction over the
suit because on the death of raja bahadur his legal
representatives were number-resident foreigners. going back to the narrow point which calls for our decision
in the present appeal we are inclined to hold that there is
numberscope for the application of the rule of private
international law to a case where the suit as initially
filed was companypetent and the companyrt before which it was filed
had jurisdiction to try it. in such a case if one of the
defendants dies and his legal representatives happen to be
number-resident foreigners the procedural step taken to bring
them on the record is intended to enable them to defend the
suit in their character as legal representatives and on
behalf of the deceased defendant and so the jurisdiction of
the companyrt companytinues unaffected and the companypetence of the
suit as originally filed remains unimpaired. in form it is
a personal action against the legal representatives but in
substance it is an action companytinued against them as legal
representatives in which the extent of their liability is
ultimately decided by the extent of the assets of the
deceased as held by them. therefore we must hold that the
high companyrt was in error in reversing the finding of the
trial companyrt on the question about the companypetence of the
hyderabad companyrt to try the two suits filed before it. in
this view it is unnecessary to companysider whether some of the
legal representatives had- submitted to the jurisdiction of
the hyderabad companyrt or number. that takes us to the other argument raised by mr. viswanatha
sastri on behalf of the respondents. he companytends that
respondents 2 to 12 who are in possession of different
pieces of property belonging to the deceased raja bahadur
under the will executed by him cannumber be said to be his
legal representative under s. 2 11  of the companye. section
2 1  provides inter alia that a legal representative means
a person who in law represents the estate of a deceased
person and includes any person who intermeddles with the
estate of the deceased. it is well knumbern that the
expression legal representative had number been define in the
code of 1882 and that led to a difference of judicial
opinion as to its denumberation. in dinamoni chaudhurani v.
elahandut khan  1  the calcutta high companyrt had occasion to
consider these companyflicting decisions. it was urged before
the high companyrt that the term legal representative used in
s.234 of the said companye had to be companystrued strictly and
could number include anybody except the heir executor or the
administrator of the deceased. the argument was that the
term had been taken from the english law and its scope companyld
number be extended. this argument was rejected by brett and
woodroffe jj. woodroffe j. examined the several judicial
decisions bearing on the point and observed from this
review of the authorities it will appear that judicial
decisions have extended the sense of the term legal
representative beyond that of its ordinarily meaning of
administrator executor and heir and though such extension
has been attended with doubt and has in some cases been the
subject of companyflicting decision it appears to me to be too
late number to endeavour however companyvenient it might be to
secure for the term that which is perhaps its strict and
legitimate sense. i agree there fore in holding that the
term is number limited to administrators executors and heirs
and am of opinion that it must number be held to include any
person who in law represents the estate of a deceased
judgment-debtor. it would be relevant to observe that the
view thus expressed by woodruffe j. has been embodied in
the present definition of legal representative by s.
2 11 .  1   1904  8 c.w.n. 843.
mr. sastri companycedes that a universal legatee would be a
legal representative and he does number challenge that the
person who intermeddles even with a part of the estate of
the deceased is also a legal representative but his
argument is that a legatee who obtains only. a part of the
estate of the deceased under a will cannumber be said to
represent his estate and is therefore number a legal
representative under s. 2 11 . we are number impressed by this
argument. the whole object of widening the scope of the
expression legal representative which the present
definition is intended to achieve would be frustrated if it
is held that legatees of different portions of the estate of
a deceased do number fall within its purview. logically it is
difficult to understand how such a companytention is companysistent
with the admitted position that person who intermeddle with
a part of the estate are legal a representatives. besides
if such a companystruction is accepted it would be so easy for
the estate of a deceased to escape its legitimate liability
to pay the debts of a deceased debtor only if the debtor
takes the precaution of making several legacies to different
persons by his will. besides as a matter of companystruction
if different intermeddlers can represent the estate
different legatees can likewise represent it. in regard to
the intermeddlers they are said to represent the estate even
though they are in possession of parcels of the estate of
the deceased and so there should be numberdifficulty in
holding that the clause a person who in law represents the
estate of a deceased person must include different lega-
tees under the will. there is numberjustification for holding
that the estate in the companytext must mean the whole of the
estate. therefore we are satisfied that the plain
construction of s. 2 11  is against mr. sastris argument
apart from the fact that companysiderations of logic and companymon
sense are equally against it. in support of his argument mr. sastri has referred us to a
decision of the madras high companyrt
in natesa sastrigal v. alamelu achi  1 . in that case the
madras high companyrt numberdoubt seems to have observed that s.
2 11  does number include legatees of part of the estate. with
respect we think the said observation does number represent
the companyrect view about the interpretation of a. 2 11 .