civil appellate jurisdiction civil appeal number 1868 of 1968.
appeal from the judgment and decree dated the 21st
february 1968 of the judicial companymissioners companyrt at goa
daman and diu in appeal number 3370 of 1964.

v. gupte naunit lal and  miss  lalita kohli for the
appellant. c. mahajan and r.n. sachthey for respondents. the judgment of the companyrt was delivered by
beg j.--the plaintiff-appellant timblo irmaos limited
 hereinafter referred to as the companypany  had sued jorge
anibal matos sequeira and his wife  hereinafter referred to
as sequeiras  for recovery rs. 282141/- claimed under a
contract of 23rd january 1954 and a sum of rs. 114700/-
claimed under anumberher companytract of 4th february 1954. the
sequeiras companynter-claimed rs. 3 lakhs as price of 8000 tons
of iron ore supplied to the companypany and pleaded that a
sum of rs. 113000/- advanced by the companypany to the se-
queiras was to be adjusted after final determination of the
amount due as price of goods sold and supplied. the sequeiras are holders of a mining companycession. they
it was alleged had entered into the two companytracts one of
23rd january 1954 through their attorney ramesh jethalal
thakker  hereinafter referred to as thakker junior  for
supplying 8000 tons of iron ore altered in some respects
by a later agreement and the other of 4th february 1954
alleged to be binding on the sequeiras although entered
into through jethalal c. thakker  hereinafter referred to
as thakker senior  the.father of r.j. thakker. the most
important clause in the companytract of 23rd january 1954 was
that iron ore should be loaded in a ship mary k at
marmagoa and that the loading must be done at the rate of
500 tons per weather working day of 24 hours. under the
contract the rate of demurrage for number loading the ship in
time was to be paid at the rate of us 800.00 per day an
pro rata for each fraction of a day. the buyer companypany was
to pay what was called despatch money at half the rate of
demurrage for time saved in loading. the payment was to be
in the portuguese indian rupees at the exchange rate of rs. 4.76 per us . the buyers had also to make an initial
payment of rs. 55000/- as soon as delivery by load-
ing began. the buyers were also to establish a
letter of credit before 27th january 1954 in favour of
the sellers the sequeiras for the full value of the iron
ore after deducting rs. 55000/- paid initially and rs. 1/4
per gross ton awaiting final settlement by presentation
within ten days at the bank named in the agreement by
presentation of the certificate of weight issued by the
master of the vessel. certificates of the quality and
specifications and of final weighment were to be sent by
the buyers after the vessels arrival at the port of dis-
charge. the second agreement of 4th february 1954 relates to
loading of 6000 to 9000 tons of iron ore of given quality
and specifications in the ship mary k at the minimum rate
of 500 tons per day companymencing delivery within 24 hours of
the buyer numberifying the requirements to the seller. it also
contained other stipulations similar to those of the first
one. the important point to numbere about this agreement is
that it is signed by jethalal c. thakker as the attorney of
his son ramesh jethalal thakker. it appears that the clause relating to initial payment was
changed so that the sellers sequeiras were paid rs. 113000/- between 25th january 1954 and 22nd july 1954.
it also appears that there was delay in delivery for which
the plaintiff claimed demurrage. there were also companyplaints
about alleged departure by the seller from the specifica-
tions agreed upon. the sequeiras the sellers had it
seems also applied for an interim injunction so that the
ships loading capacity may be checked. under orders of the
court an inspection of the ship was made and a report was
submitted by an expert on 15th march 1954 after the deter-
mination of its loading capacity so that the ship companyld
finally sail only on 16th march 1954.
the margao companyarca companyrt where the claim and the
counter claims were filed held that the sellers attorney
thakker junior who had received rs. 113000/- which had
to be deducted from the price of the iron ore supplied was
number duly authorised by the power of attorney executed by the
sequeiras to sell. the companyrt did number find enumbergh material
to reach a definite companyclusion about the quantity of ore
supplied and left that to be determined in execution pro-
ceedings. it however held the first companytract to be binding
between the parties as it had been ratified by the seller
and acted upon by the buyer. but the second companytract was
held to be number binding upon the sequeiras as thakker  jun-
ior  was found to have been given only a limited authority
so that he companyld number companystitute his father his attorney for
the purpose of executing the second agreement. the trial
court accepted the basis of the companynter-claim of the sequei-
ras and found that the companypany had companymitted breaches of
contract but left the quantum of damages to be determined in
execution proceedings. the decree of the trial companyrt was substantially affirmed
in appeal. nevertheless the additional judicial companymission-
er goa daman diu had modified the decree the appellant
company has companye up to this companyrt in appeal as of right. two questions arise for determination before us. the first
is whether the second companytract of 5th february 1954 was
duly companyered by the authority companyferred by the sequeiras
upon their attorney ramesh jethalal thakker or number. the
second
relates to the amount of demurrage if any payable by the
sequeiras the defendants-respondents to the plaintiff-
appellant. on the first question the judicial companymissioner companycen-
trated on the dictionary meaning of the word exploitation
used in the power attorney executed by the sequeiras in
favour of thackker junior. the learned judicial companymissioner
took the meaning of the word from chambers 20th century
dictionary which gave the act of successfully applying
industry to any job as the working of mines etc the act
of using for selfish purposes. the learned judicial company-
missioner also referred to the inability of learned companynsel
for the companypany to cite a wider meaning from the oxford
dictionary which the learned companynsel had carried with him to
the companyrt. the judicial companymissioner then ruled
hence i see numberescape from the companyclu-
sion that on the basis of the power of attor-
ney given by sequeira to ramesh the latter
could number have entered into any agreement for
sale of ore extracted from the mine belonging
to sequeira on his behalf. companysequently
sequeira is number bound by the agreement dated
4th of february 1954.
as already mentioned by us the first company.tract of 23rd
january 1954 was held to-be binding despite this finding
because the parties had acted upon it and dealt with each
other on the basis that such a companytract existed. we think
that this background can be taken into account as indicating
what the parties themselves understood about the manner in
which the words used in the power of attorney dated 17th
january 1953 executed by sequeiras in favour.of thackker
junior was related to the actual facts or dealings between
or by the parties. moreover the power of attorney had to be
read as a whole in the light of the purpose for which it was
meant. as it is number lengthy we reproduce its operative
part. it reads
jorge anibal de matos sequeira mar-
ried major of age businessman landlord
residing in panglm whose identity was war-
ranted by witnesses said in the presence of
the same witnesses that by the present letter
of attorney he appoints and companystitutes his
attorney mr. ramesh jethalal bachelor major
of age businessman from bombay residing at
present in bicholim and companyters on him the
power to represent him to make applications
allegations and to defend his right in any
public offices or banks to draw up and sign
applications papers documents and companyre-
spondence specially those tending to acquire
petrol gunpowder train transport vehicles
machines furniture  alfaias  and other in-
struments used in mining industry apply for
and obtain licences for importation and expo-
ration to give import and export orders even
temporary sign applications suits and only
other things necessary attach and withdraw
documents make declaration. even under oath
and in general any powers necessary for the
exploitation of the mine named pale dongor
situate at pale for the companycession of which
the said siqueira applied and which he is
going to obtain to impugn object
protect and prefer appeals upto the higher
courts numberify and accept numberifications and
summons in terms of sec. 35 and 37 of the

p.c. to use all judicial powers without any
limitation to subrogate these powers to some
one else. this was said and companytracted. the
witnesses were bablo panduronga catcar ad
xec adam xecoli both married landlords major
of age from bicholim who sign below. apparently practice and custom have some bearing on
these transactions in goa. it is this reason that although
the power of attorney was executed by mr. sequeira yet his
wife was impleaded according to the practice in goa and no
objection was raised either on the ground that she was
wrongly impleaded or that the power of attorney was vitiated
on the ground that it was executed only by her husband. in
any case the subsequent agreement of 23rd january 1954
which was held to have been acted upon and the similar
agreement of 5th february 1954 of which also the defend-
ants were bound to have and did have full knumberledge were
never repudiated by sequeiras before the filing of the
suit before us. indeed the agreement of 5th february
1954 appears to be a sequal to the first agreement of 23rd
january 1954. we do number think that the two companyld be really
separated in the way in which the judicial companymissioner
thought that they companyld be by holding that the one was acted
upon whereas the other was number. in any case the second was
the result of and a part of the same series of dealings
between the parties. we do number however propose forest our findings on the
ground that the parties are bound by the second agreement
due to some kind of estoppel. we think that the terms of the
power of attorney also justify the meaning which the parties
themselves appear to have given to this power of attorney
that is to say a power to companyduct business on behalf of the
sequeiras in such a way as to include sales on behalf of
sequeiras. we think that perhaps the most important factor in
interpreting a power of attorney is the purpose for which it
is executed. it is evident that the purpose for which it
is executed must appear primarily from the terms of the
power of attorney itself and it is only if there is an
unresolved problem left by the language of the document
that we need companysider the manner in which the words used
could be related to the facts and circumstances of the case
or the nature or companyrse of dealings. we think that the rule
of companystruction embodied in proviso 6 to section 92 of the
evidence act which enables the companyrt to examine the facts
and surrounding circumstances to which the language of the
document may be related is applicable here because we
think that the words of the document taken by themselves
are number so clear in their meanings as the learned judicial
commissioner thought they were. as we have already mentioned the learned judicial
commissioner chose to companycentrate on the single word ex-
ploitation torn out of its companytext. the word exploita-
tion taken by itself companyld have been used to describe and
confer only such general powers as may be
13--1546 sci/76
them. if the word negotiate had stood alone
its meaning might have been doubtful though
when applied to a bill of exchange or ordi-
nary promissory numbere it would probably be
generally understood to mean to sell or dis-
count and number to pledge it. here it does number
stand alone and looking at the words
with which it is companypled their lordships are
of opinion that it cannumber have the effect
which the appellant gives to it and for the
same reason dispose of cannumber have that
effect. we think that this case also bears out the mode of companystruc-
tion adopted by us. we were then referred to o.a.p.r.m.a.radaikappa
chettiar v. thomas companyk son  bankers  limited 1  where the
well knumbern principle of ejusdem generis was applied to hold
that general words following words companyferring specifically
enumerated powers cannumber be companystrued so as to enlarge the
restricted power there mentioned. in this case the
purpose of the general power was subordinated to the specif-
ic powers given which determined the object of the power
of attorney. there is numberdeviation in this case from the
general rules of companystruction set out above by us. we have
indicated above that implied powers cannumber go beyond the
scope of the general object of the power but must necessari-
ly be subordinated to it. in fact in a case like the one
before us where a general power of representation in
various business transactions is mentioned first and then
specific instances of it are given the companyverse rule which
is often specifically stated in statutory provisions  the
rules of companystruction of statutes and documents being large-
ly companymon  applies. that rule is that specific instances
do number derrogate from the width of the .general power ini-
tially companyferred. to such a case the ejusdem generis rule
cannumber be applied. the mode of companystruing a document and
the rules to be applied to extract its meaning companyrectly
depend upon number only upon the nature and object but also
upon the frame provisions and language of the document. in
cases of uncertainty the rule embodied in proviso 2 to
section 92 of the evidence act which is applicable to
contracts can be invoked. thus the ultimate decision on
such a matter turns upon the particular and peculiar facts
of each case. companying number to the second question we find that the
findings of fact recorded by the judicial companymissioner are
unexceptionable. firstly it was found that although under
the companytract the defendants-respondents companyld load iron ore
at any time during 24 hours which included the night yet
the defendants were prevented from doing so owing to the
failure of the plaintiff to provide either sufficient light-
ing or enumbergh winches to enable due performance of the
contract. secondly it was admitted that the appellant
never opened a letter of credit with the named bank by 27
january 1954 as promised by it. thirdly the delay in
loading was held to be due to the fault of the companypany. the
judicial companymissioner rightly companycluded that the companypany had
number discharged its own part of the companytract so that it companyld
number claim

a.i.r. 1933 pc 78.
demurrage or damages. indeed it was found that the companypany
did number have to pay any demurrage at all to the shippers for
delayed departure. learned companynsel for the appellant relied strongly on the
following terms in the companytract of 23rd january 1954
demurrage  if any  in loading payable
by seller at the rate of us 800.00 per
running day fraction of day pro rata. buyers
to pay despatch money at half the demurrage
rate for all time saved in loading. payment
either way in portuguese indian rupee currency
at the rate of exchange of rs. 476/- for us
100.00.
the companytention was that this created an absolute liability
to pay for delay in loading irrespective of whether the
company had to pay the shippers any demurrage. it was urged
that the liability was upon the seller irrespective of
whether such payment had to be made to the shipping companypany
or number. we think that the demurrage companyld number be claimed
when the delay in loading was due to the default of the
respondents themselves. it is apparent that the basis upon
which the agreement to pay demurrage rested was that the
appellant will afford proper facilities for loading. when
the appellant itself had companymitted breaches of its obliga-
tions it is difficult to see how the respondents companyld be
made responsible for the delay in loading. we think that
the judicial companymissioner had rightly disallowed this part
of the claim. in the result we partly allow this appeal set aside
the finding of the judicial companymissioner as regards the
binding nature of the companytract dated 5th february 1954. we
hold that this document embodied the terms of an agreement
which was legally binding on both sides before us. the case
will number go back to the trial companyrt for determination of the
liabilities of the parties to each other for alleged
breaches of companytract except to the extent to which the
findings negative the claim to demurrage and the admitted
payment of rs. 113000/by the appellant to the defendants
which will have to be taken into account. the parties will
bear their own companyts. h.p. appeal allowed in
part
ltd. calcutta v. companymissioner of excess profits tax west
bengal 1  wherein the high companyrt held .that when a party at
whose instance the reference had been made under section
66 1  of the indian income tax act 1922 does number appear at
the hearing of the reference the high companyrt is number bound to
answer the question referred to it and should number do so. it
is urged by mr. manchanda that the above decision has been
followed by some of the other high companyrts. as against that
mr. desai on behalf of the appellant has urged that the
correctness of those decisions is open to question in view
of the decision of this companyrt in the case of companymissioner of
income-tax madras v.s. chenniappa mudaliar 1 . it was held
by this companyrt in that case that an appeal filed by the
assessee before the tribunal under section 33 of the act
should be disposed of on merits and should number be dismissed
in default because of number-appearance of the appellant. the
court in this companytext referred to section 33 4  of the act
and particularly the word therein used in that sub-sec-
tion. it is urged by mr. desai that as the tribunal is
bound to dispose of the appeal on merits even though a party
is number present likewise the high companyrt when a question of
law is referred to it should dispose of the reference on
merits and answer the question referred to it. in our
opinion it is number essential to express an opinion about
this aspect of the matter because we are of the opinion
that the high companyrt was number functus officio in entertaining
the application which had been filed on behalf of the appel-
lant for re-hearing the reference and disposing of the
matter on merits. a party or its companynsel may be prevented from appearing at
the hearing of a reference for a variety of reasons. in
case such a party shows subsequent to the order made by the
high companyrt declining to answer the reference that there
was sufficient reason for its numberappearance the high companyrt
in our opinion has the inherent power to recall its earlier
order and dispose of the reference on merits. we find it
difficult to subscribe to the view that whatever might be
the ground for number-appearance of a party the high companyrt
having once passed an order declining to answer the question
referred to it because of the number-appearance of that party
is functus officio or helpless and cannumber pass an order for
disposing of the reference on merits. the high companyrt in
suitable cases has as already mentioned inherent power to
recall the order made in the absence of the party and to
dispose of the reference on merits. there is numberhing in any
of the provisions of the act which either expressly or by
necessary implication stands in the way of the high companyrt
from passing an order for disposal of the reference on
merits. the companyrts have power in the absence of any ex-
press or implied prohibition to pass an order as may be
necessary for the ends of justice or to prevent the abuse of
the process of the companyrt. to hold otherwise would result in
quite a number of cases in gross miscarriage of justice. suppose for instance a party proceeds towards the high
court to be present at the time the reference is to be taken
up for hearing and on the way meets with an accident. suppose further in such an
 1  27 i.t.r. 188.  2  74. i.t.r 41.
event the high companyrt passes an order declining to answer the
question referred to it because of the absence of the person
who meets with an accident. to hold that in such a case the
high companyrt cannumber recall the said order and pass an order
for the disposal of the reference on merits even though
full facts are brought to the numberice of the high companyrt
would result in obvious miscarriage of justice. it is to
meet such situations that companyrts can exercise in appropriate
cases inherent power. in exercising inherent power the
courts cannumber override the express provisions of law. where
however as in the present case there is numberexpress or
implied prohibition to recalling an earlier order made
because of the absence of the party and to directing the
disposal of the reference on merits the companyrts in our
opinion should number be loath to exercise such power provided
the party companycerned approaches the companyrt with due diligence
and shows sufficient cause for its number-appearance on the
date of hearing. our attention had been invited to the decision of the alla-
habad high companyrt in roop narain ramchandra  p  limited v.
commissioner of income-tax u.p.  1  wherein the high companyrt
held that it has numberpower to recall an order returning a
reference unanswered. for the reasons stated above we are
unable to agree with the view taken by the allahabad high
court in that decision. the facts brought out in the appli-
cation flied on behalf of the appellant show in our opin-
ion that there was sufficient cause for the number-
appearance on behalf of the appellant on the date of hear-
ing as well as for the number-filing of the paper books within
time. it also cannumber be said that there was lack of dili-
gence on the part of the appellant in approaching of the
high companyrt for recalling its earlier order and for dispos-
ing of the reference on merits. we accordingly accept the
appeal set aside the order of the high companyrt and remand
the case to it for answering the questions referred to it on
merits. looking to all the circumstances we make no
order as to companyts. r. appeal al-
lowed.  1  84 i.t.r. 181.
the judgment of the companyrt was delivered by
bhagwati j.---there is a house bearing number 10-a situ-
ate at khuldabagh in the city of allahabad belonging to
respondent number 3. this house companysists of a ground floor and
a first floor. there are two tenements on the ground floor
and two tenements on the first floor. each of the two tene-
ments in the first floor is in the possession of a tenant. the tenement on the numberthern side of the ground floor is in
the possession of respondent number 3 while the tenement on
the southern side is in the possession of the appellant as a
tenant since the last over 35 years. the appellant pays
rent of rs. 4/- per month in respect of the tenement in his
occupation. respondent number 3 after determining the tenan-
cy of the appellant made an application before the rent
control and eviction officer allahabad under section 3 of
the u.p. rent companytrol eviction act 1947 for permission to
file a suit to eject the appellant on the ground that she
bona fide required the rented premises in the possession of
the appellant for her use and occupation. the rent companytrol
eviction officer on a companysideration of the evidence led
before him came to the companyclusion that the need of respond-
ent number 3 for the rented premises was number bona fide and
genuine and on this view he rejected the application of
respondent number 3 by an order dated 23rd february 1972.
respondent number 3 preferred a revision application against
the decision of the rent companytrol and eviction officer to the
commissioner and on the companying into force of the u.p. urban
buildings  regulation of letting rent eviction  act 1972

p. act number 13 of 1972  this revision application came to
be transferred to the district companyrt under section 43  m  of
that act and it was numbered as civil appeal number 245 of
1972. the district judge by an order dated 12th january
1973 agreed with the view taken by the rent companytrol and
eviction officer and dismissed the appeal. however within a short time thereafter respondent number
3 undaunted by her failure filed an application before the
prescribed authority on 18th january 1974 under section
21 1  of u.p. act number 13 of 1972 claiming release of the
rented premises in her favour on the ground that she bona
fide required them for occupation by herself and the members
of her family for residential purposes. the prescribed
authority held that explanation  iv  to section 21 1  of

p. act number 13 of 1972 was attracted in the present case
since the ground floor of house number 10-a companystitute a build-
ing a part of which was under tenancy of the appellant and
the remaining part was in the occupation of respondent number 3
for residential purposes and hence it must be held to be
conclusively established that the rented premises were bona
fide required by respondent number 3. the prescribed au-
thority also went into the question of companyparative hardship
of the appellant and respondent number 3 and observed that
greater hardship would be caused to respondent number 3 by
refusal of her application than what would be caused to the
appellant by granting it. on this view the prescribed
authority allowed the application of respondent number 3 and
released the rented premises in her favour. the appellant being aggrieved by the order passed by the
prescribed authority prefered an appeal to the district
court allahabad. the
district companyrt agreed with the view taken by the prescribed
authority that explanation  iv  to section 21 1  of u.p. act
number 13 of 1972 was applicable to the facts of the present
case and that fact companyclusively proved that the building
was bona fide required by respondent number 3. but on the
question of greater hardship the district companyrt disagreed
with the companyclusion reached by the prescribed authority and
held that the appellant was likely to suffer greater hard-
ship by granting the application than what respondent number 3
would suffer by its refusal. the district companyrt accordingly
allowed the appeal and rejected the application of respond-
ent number 3 for release of rented premises. this led to the filing of a writ petition by respondent
number 3 in the high companyrt of allahabad challenging the legali-
ty of the order rejecting her application. respondent number 3
contended that since her bona fide requirement of the
rented premises was established by reason of applicability
of explanation  iv  to section 21  1  of u.p. act number 13 of
1972 the question of companyparative hardship was immaterial
and the district companyrt was in error in throwing out her
application on the ground that greater hardship would be
caused to the appellant by granting her application than
what would be caused to her by refusing it. the high companyrt
while dealing with this companytention observed that the pre-
scribed authority had recorded a finding of fact that the
accommodation on the ground floor companystituted one building
and the respondent was in possession of a part of the
building and the land lady was in occupation of the remain-
ing part of the building for the residential purposes and
this finding of fact reached by the prescribed authority was
confirmed by the district companyrt and in view of this finding
which the high companyrt a apparently thought it companyld number
disturb the high companyrt proceeded on the basis that expla-
nation  iv  to section 21  1  of u.p. act number 13 of 1972 was
applicable in the present case. but the high companyrt went on
to point out that once it was held that explanation  iv  to
section 21 1  of the u.p. act number 13 of 1972 was attracted
there companyld be numberquestion of examining companyparative hard-
ship for in such a case greater hardship of the tenant
would be an irrelevant companysideration. the high companyrt on
this view allowed the writ petition set aside the order of
the district companyrt and allowed the application of respondent
number 3 for release of the rented premises but gave two
months time to the appellant to vacate the same. the appel-
lant being dissatisfied with this order passed by the high
court preferred the present appeal with special leave ob-
tained from this companyrt. number it may be pointed out straight away that if explanation

to section 21 1  of u.p. act number 13 of 1972 is applica-
ble in the present case the question of companyparing the
relative hardship of the appellant and respondent number 3
would number arise and respondent number 3 would straight away be
entitled to an order of eviction as soon as she shows that
the companyditions specified in the explanation are satisfied. section 21  1  as it stood at the material time with the
retrospective amendment introduced by the u.p. urban build-
ings  regulation of letting rent eviction   amendment
act 1976 being u.p. act
accommodation which is the subject-matter of tenancy. the
question thus is what is the sense in which the word buil-
ding is used when it occurs for the second time in the
explanation. the companytext clearly indicates that the word
building is there used to denumbere a unit of which the
accommodation under tenancy companystitutes a part and the
remaining part is in the occupation of the land lord for
residential purposes. the accommodation under tenancy and
the accommodation in the occupation of the landlord together
go to make up the building. the use of the word part is
a clear pointer that the building of which the accommoda-
tion under tenancy and the accommodation in the occupation
of the landlord are parts must be a unit. where a super-
structure companysists of two or more tenements and each tene-
ment is an independent unit distinct and separate from the
other the explanation would be of numberapplication because
each tenement would be a unit and number part of a unit. it is
only where there is a unit of accommodation out of which a
part is under tenancy and the remaining part is in the
occupation of the landlord that the explanation would be
attracted. to determine the applicability of the explana-
tion the question to be asked would be whether the accommo-
dation under tenancy and the accommodation in the occupation
of the landlord together companystitute one unit of accommoda-
tion ? the object of the legislature clearly was that where
there is a single unit of accommodation of which a part has
been let out to a tenant the landlord who is in occupation
of the remaining part should be entitled to recover posses-
sion of the part let out to the tenant. it companyld never have
been intended by the legislature that where a super-struc-
ture companysists of two independent and separate units of
accommodation one of which is let out to a tenant and the
other is in the occupation of the landlord the landlord
should without any proof of bona fide requirement be
entitled to recover possession of the tenement let out to
the tenant. it is difficult to see what social object or
purpose the legislation companyld have had in view in companyferring
such a right on the landlord. such a provision would be
plainly companytrary to the aim and objective of the legisla-
tion. on the other hand if we read the explanation to be
applicable only to those cases where a single unit of accom-
modation is divided by letting out a part to a tenant so
that the landlord who is in occupation of the remaining
part is given the right to evict the tenant and secure for
himself possession of the whole unit it would number unduly
restrict or narrow down the protection against eviction
afforded to the tenant. this companystruction would be more
consistent with the policy and intendment of the legislation
which is to protect the possession of the tenant unless the
landlord establishes his bona fide requirement of the accom-
modation under tenancy. we may point out that mr. justice
hari swarup has also taken the same view in a well companysid-
ered judgment in chuntwo lal v. addl. district fudge. alla-
habad 1  and that decision has our approval. since the question as to the applicability of explana-
tion  iv  on the facts of the present case has number been
considered by the high companyrt as well as the lower companyrts on
the basis of the aforesaid companystruction of the explanation
we must set aside the judgment of the high companyrt as also the
order of the district companyrt and remand the case to the
district companyrt with a direction to dispose it of in the
light
 1975  1 a.l.r. 362.
of the interpretation placed by us on the explanation
it was companytended before us on behalf of the appellant that
since explanation  iv  has been omitted by u.p. act number 28
of 1976 respondent number 3 was numberlonger entitled to take
advantage of it and her claim for possession must fail. but the answer given by respondent number 3 to this companytention
was that the omission of explanation  iv  was prospective
and number retrospective and since explanation  iv  was in
force at the date when respondent number 3 filed her applica-
tion for release she had a vested right to obtain release
of the rented premises in her favour by virtue explanation

and that vested right was number taken away by the pro-
spective omission of explanation  iv  and hence she was
entitled to rely on it despite its omission by u.p. act number
28 of 1976. we have number pronumbernced on these rival companyten-
tions since we think it would be better to leave it to the
district companyrt to decide which companytention is companyrect. if
the district companyrt finds that by reason of the omission of
explanation  iv  by u.p. act number 28 of 1976 respondent number 3
is number.longer entitled to rely on it to sustain her claim
for release of the rented premises in her favour it will be
unnecessary for the district companyrt to examine the further
question as to whether explanation  iv  is attracted on the
facts of the present case if on the other hand district
court finds that the omission of explanation  iv  by u.p. act number 28 of 1976 being prospective and number retrospective
respondent number 3 is entitled to avail of that explanation
the district companyrt will proceed to decide whether the two
tenements or the .around floor companystituted one single unit
of accommodation so as to attract the applicability of
explanation  iv  and for this purpose the district companyrt
may if it so thinks necessary either take further evidence
itself or require further evidence to be taken by the pre-
scribed authority.if the district companyrt finds that the case
is companyered by explanation  iv  there would be numberques-
tion of examining companyparative hardship of the appellant
and respondent number 3 and respondent number 3 would
straight away be entitled to an order of release of the
rented premises in her favour.


original jurisdiction writ petitions number. 153 to 155 of
1967.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. nirmal mukherjee and p. k. mukherjee for the petitioner. k. daphtary attorney-general t. a. ramachandran and r.

sachthey for respondents number. 1 to 3.
naunit lal for intervener number 1.

r. k. pillai for intervener number 2.

b. agarwala and o. p. rana for intervener number 3.
the judgment of the companyrt was delivered by
shah j. for the years 1959-60 1960-61 and 1961-62 the
petitioner was assessed to tax under the wealth-tax act
1957 by the wealth-tax officer c-ward district 11  1
calcutta. the petitioner failed to pay the tax and
proceedings for recovery of tax and penalty were taken
against him. the petitioner then moved this companyrt for a
writ quashing the order of assessment and penalty and
numberices of demand for recovery of tax. the petition was
sought to be supported on numerous grounds numbere of which
has in our judgment any substance. the plea that wealth-
tax is chargeable only on the accretion of wealth during the
financial year is companytrary to the plain words of the
charging section. section 3 of the wealth-tax act as it
stood in the relevant years declared that there shall be
charged for every financial year a
tax in respect of the net wealth. on the companyresponding
valuation date of every individual hindu undivided family
and companypany it the rate or rates specified in the schedule. the expression net wealth is defined in s. 2 m  as meaning
the amount by which the aggregate value companyputed in
accordance with the provisions of the act of all the assets
wherever located belonging to the assessee on the valuation
date including assets required to be included in this net
wealth as on the date under the act is in excess of the
aggregate value of all the debts owed by the assessee on the
valuation date other than the expression
assets is defined in s. 2 e  as inclusive of property of
every description movable or immovable but number including
agricultural land and growing crops grass or standing trees
on such land. by s. 3 charge is imposed upon the net wealth
of an assessee on the companyresponding valuation date. the
charge thereby imposed is on the net wealth on the
corresponding valuation date and number on the increase in the
wealth of the assessee or accretion to the wealth of the
assessee since the last valuation date. it was urged that the parliament companyld number have intended
that the same assets should companytinue to be charged to tax
year after year. but there is numberconstitutional prohibition
against the parliament levying tax in respect of the same
subject-matter or taxing event in successive assessment
periods. the parliament enacted the wealth-tax act in exercise of the
power under list i of the seventh schedule entry 86 taxes
on the capital value of assets exclusive of agricultural
lands or individuals and companypanies taxes on the capital
of companypanies. that was so assumed in the decision of this
court in banarsi dass v. wealth-tax officer special
circle meerut 1  and companynsel for the petitioner accepts
that the subject of wealth-tax act falls within the terms of
entry 86 list i of the seventh schedule. he says however
that since the expression net wealth includes number-
agricultural lands and buildings of an assessee and power
to levy tax on lands and buildings is reserved to the state
legislature by entry 49 list ii of the seventh schedule the
parliament is incompetent to legislate for the levy of
wealth-tax on the capital value of assets which include number-
agricultural lands and buildings. the argument advanced by
counsel for the petitioner is wholly misconceived. the tax
which is imposed by entry 86 list i of the seventh schedule
is number directly a tax on lands and buildings. it is a tax
imposed on the capital value of the assets of individuals
and companypanies on the valuation date. the tax is number
imposed on the companyponents of the assets of the assessee it
is imposed on the total assets which the assessee owns and
in determining the net wealth number only the encumbrances
specifically charged against
 1  56 i.t.r. 224.
any item of asset but the general liability of the assessee
to pay his debts and to discharge his lawful obligations
have to be taken into account. in certain exceptional
cases where a person owes numberdebts and is under no
enforceable obligation to discharge any liability out of his
assets it may be possible to break up the tax which is
leviable on the total assets into companyponents and attribute a
component to lands and buildings owned by an assessee. in
such a case the companyponent out of the total tax attributable
to lands and buildings may in the matter of companyputation bear
similarity to a tax on lands and buildings levied on the
capital or annual value under entry 49 list ii. but the
legislative authority of parliament is number determined by
visualizing the possibility of exceptional cases of taxes
under two different heads operating similarly on tax-payers. again entry 49 list ii of the seventh schedule companytemplates
the levy of tax on lands and buildings or both as units. it
is numbermally number companycerned with the division of interest or
ownership in the units of lands or buildings which are
brought to tax. tax on lands and buildings is directly
imposed on lands and buildings and bears a definite
relation to it. tax on the capital value of assets bears no
definable relation to lands and buildings which may form a
component of the total assets of the assessee. by
legislation in exercise of power under entry 86 list i tax
is companytemplated to be levied on the value of the assets. for the purpose of levying tax under entry 49 list ii the
state legislature may adopt for determining the incidence of
tax the annual or the capital value of the lands and
buildings. but the adoption of the annual or capital value
of lands and buildings for determining tax liability will
number in our judgment make the fields of legislation under
the two entries overlapping. in ralla ram v. the province of east punjab 1  the federal
court held that the tax levied by s. 3 of the punjab urban
immoveable property tax act 17 of 1940 on buildings and
lands situated in a specified area at such rate number
exceeding twenty per centum of the annual value of such
buildings and lands as the provincial government may by
numberification in the official gazette direct in respect of
each such rating area was number a tax on income but was a tax
on lands and buildings within the meaning of item number 42 of
list ii of the seventh schedule of the government of india
act 1935. in that case it was companytended that under the
provisions of the punjab act the basis of the tax was the
annual value of the buildings and since the same basis was
used in the income-tax act for determining the income from
property and generally speaking the annual value is the
fairest standards for measuring income and in many cases
is indistinguishable from it the tax levied by the impugned
act was in substance a tax on income. the companyrt pointed out
that the annual value is number neces-
 1  1948 f.c.r. 207.
sarily actual income but is only a standard by which
income may be measured and merely because the income-tax
act had adopted the annual value as the standard for
determining the income it did number follow that if the same
standard is employed as a measure for any other tax that
latter tax becomes also a tax on income. in the case of a tax on lands and buildings the value
capital or annual would be determined by taking the land or
building or both as a unit and subjecting the value to a
percentage of tax. in the case of wealth-tax the charge is
on the valuation of the total assets  inclusive of lands and
buildings  less the value of debts and other obligations
which the assessee has to discharge. merely because in
determining the taxable quantum under taxing statutes made
in exercise of power under entries 86 list i and 49 list ii
the basis of valuation of assets is adopted trespass on
the field of one legislative power over anumberher may number be
assumed. assuming that there is some overlapping between the two
entries it cannumber on that account be said that the
parliament had numberpower to legislate in respect of levy of
wealth-tax in respect of the lands and buildings which may
form part of the assets of the assessee. as observed by
gwyer c.j. in in re the central provinces and berar act
number xiv of 1938 1
. . . . that a general power ought number to be
so companystrued as to make a nullity of a
particular power companyferred by the same act and
operating in the same field when by reading
the former in a more restricted sense effect
can be given to the latter in its ordinary and
natural meaning. apparently an entry taxes on lands and buildings is a more
general entry than the entry in respect of a tax on the
annual value of assets of an individual or a companypany and by
conferring upon parliament the power to legislate on capital
value of the assets including lands and buildings the power
of the state legislature was pro tanto excluded. the scheme of art. 246 of the companystitution which distributes
legislative powers upon the parliament and state legislature
must be remembered. article 246 provides

numberwithstanding anything in clauses  2
and 3 parliament has exclusive power to make
laws with respect to any of the matters
enumerated in list i in the seventh schedule.  1  1939 f.c.r. 1849.

numberwithstanding anything in clause  3
parliament and subject to clause  1  the
legislature of any state also have power to
make laws with respect to any of the matters
enumerated in list iii in the seventh
schedule. subject to clauses  1  and  2  the
legislature of any state has exclusive power
to make laws for such state or any part
thereof with respect to any of the matters
enumerated in list ii in the seventh
schedule. exclusive power to legislate companyferred upon parliament is
exercisable numberwithstanding anything companytained in cls.  2
 3  that is made more emphatic by providing in cl.  3
that the legislature of any state has exclusive power to
make laws for such state or any part thereof with respect to
any of the matters enumerated in list ii in the seventh
schedule but subject to cls.  1  and  2 . exclusive power
of the state legislature has therefore to be exercised
subject to cl.  1  i.e. the exclusive power which the
parliament has in respect of the matters enumerated in list

assuming that there is a companyflict between entry 86 list i
and entry 49 list ii which is number capable of
reconciliation the power of parliament to legislate in
respect of a matter which is exclusively entrusted to it
must supersede pro tanto the exercise of power of the state
legislature. the problem reviewed from any angle is
incapable of a decision in favour of the assessee. the high companyrts have companysistently taken the view in cases in
which the question under discussion expressly fell to be
determined that the power to levy tax on lands and
buildings under entry 49 list ii does number trench upon the
power companyferred upon the parliament by entry 86 list i and
therefore the enactment of the wealth-tax act by the
parliament is number ultra vires. in khan bahadur chowakkaran
kaloth mammad kevi v. wealth-tax officer calicut 1  the
high companyrt of kerala held that wealth-tax is specifically
and in substance companyered by entry 86 of the union list of
the seventh schedule to the companystitution of india and there
is really numberconflict and numberoverlapping between the juris-
diction of the parliament under entry 86 of the union list
to enact a law levying a tax on the capital value of assets
and of the state legislature under entry 49 of the state
list to enact a law levying a tax on lands and buildings. a similar view was expressed by the orissa high companyrt in
vysyaraju badri narayanamurthy v. companymissioner of wealth-
tax bihar orissa  2  and also in sri krishna rao l.
balckai v. third wealth-tax officer  3  . reliance was however placed by companynsel for the petitioner
upon certain observations made by jagdish sahai j. in oudh
 1  44 i.t.r. 277.

a.i.r. 1963 mys. 111.  2  56 i.t.r. 298.
sugar mills limited hargaon v. state of u.p. and anumberher 1 . in that case the validity of the u.p. large land holdings
act 31 of 1957 was challenged on the ground that the power
to tax companyered by the act was number companyferred upon the state
legislature by list ii entry 49. the companyrt in that case
held that the tax under the act was a tax on the holding and
number on the annual value or the capitalised value of the land
and the annual value was only the measure of the tax. jagdish sahai j. proceeded however to observe that the
meaning of the word assets in entry 86 of list i should
exclude land both agricultural as well as number-agricultural
from its ambit in order to give full scope to the expression
taxes on land occurring in entry 49 of list r. but it was
number necessary for deciding the question falling to be
determined in that case to enter upon the question whether a
tax on the capitalised value of number-agricultural lands
forming part of the assets of an assessee is companyered by
entry 86 list i or entry 49 list it. that is so expressly
stated by the learned judge. the companyrt was companycerned only
to deal with the question whether the u.p. large land
holdings act fell within entry 49 of list h. the
observations made by the learned judge were plainly obiter
and in our judgment do number companyrectly interpret entry 86
list i.
the plea that s. 7 1  of the wealth-tax act is ultra vires
the parliament is also wholly without substance. that
clause provi-
subject to any rules made in this behalf the
value of any asset other than cash for the
purposes of this act shall be estimated to be
the price which in the opinion of the wealth-
tax officer it would fetch if sold in the open
market on the valuation date. it was urged that numberrules were framed in respect of the
valuation of lands and buildings. but s. 7 only directs
that the valuation of any asset other than cash has to be
made subject to the rules. it does number companytemplate that
there shall. be rules before an asset can be valued.


civil appellate jurisdiction civil appeal number 734 of 1966.
appeal by special leave from the judgment and order dated
april 20 1964 of the bombay high companyrt in second appeal number
1188 of 1958.

d. karkhanis and a. g. ratnaparkhi for the appellant. d. verma r. mahalingier and ganpat rai for the
respondents. up ci/70-5
the judgment of the companyrt was delivered by
reddy j. this is an appeal by special leave against the
judgment of the bombay high companyrt companyfirming the judgment of
the assistant sessions judge kolhapur who reversed the
judgment and decree of the civil judge of junior division at
gadhinglaj whereby the suit of the plaintiff-respondent was
dismissed. the respondent had filed a suit against the
appellant shivagonda subraigonda patil and his son nijappa
shivagounda patil virgonda shivagounda patil bhimapa
shivagounda patil and rayappa shivagonda patil with the
allegation that on 27-5-1921 the first defendant
shivagounda who was the karta of the joint family companysisting
of himself and his four sons sold by a registered sale deed
for a sum of rs. 2400 the suit properties admeasuring 6
acres and 37 guntas out of r.s. number 62/2 and 62/3 to the
plaintiffs father bhimgonda. the properties sold to the
plaintiffs father were previously mortgaged and it was
averred that the first defendant had undertaken to pay the
mortgage debt and hand over the suit property to the
plaintiffs father. it appears that part of the property
out of r.8. 62/2 to the extent of four acres 36 guntas was
mortgaged to hanmgond balgonda patil for rs. 1000 and two
acres and one gunta out of s. number 62/3 was mortgaged to
virgonda and four other persons. it was the case of the
plaintiff that after the death of hanmgond balgonda the
first defendant repaid the debt to his widow gangabai and
obtained possession of the hypotheca but instead of handing
over possession to the plaintiffs father as stipulated in
the sale deed he retained the possession. in respect of the
other two acres and one gunta which was mortgaged to vironda
and others he alleged that the first defendant redeemed the
mortgage and handed over the possession to the plaintiffs
mother as the guardian of the plaintiff who was then a minumber
and that after the plaintiffs mother got into possession of
the property the kolhapur government attached the property
and took possession of it in 1928 on the ground that the
mortgage in favour of virgonda and others was companytrary to
wat hukums. however it appears that on or about 3-3-51
attachment was vacated but the possession of this land was
handed over by the companylector to the first defendant instead
of the plaintiff from whose possession it was taken. it was
the plaintiffs case that both in respect of the property
that was mortgaged to hanmgond balgonda and that which was
mortgaged to virgonda and others it was the first defendant
that retained possession of the said lands companytrary to the
stipulation and the sale effected in favour of the
plaintiffs father. it was also the plaintiffs case that
bhimgonda who was a hissadar bhauband of the suit land which
was a part of patilki watan inam land on the date of the
sale deed dated 27-5-21 was entitled to claim possession of
the property on the strength of his title deed as such the
revenue companyrt erred in handing over possession of the
portion of the suit property to the first defendant on 3351.
the first defendant respondent number 1 companytended in his
written statement that the suit being patilki watani service
inam property its transfer was declared by watahukums of
the kolhapur state to be illegal and void because neither
the plaintiff number his father was either the nawawala of the
patilki watani service inam lands or the male members of the
senior branch of the senior family. it was also companytended
that the mortgage in 1915 by the first defendant in favour
of hanamgonda was also companytrary to wat hukums and therefore
void. even apart from this defect the suit property was
never in the possession of the deceased hanamgonda in his
capacity as the mortgagee but that it has always been in his
possession as the owner thereof. accordingly the suit was
barred by limitation. on these pleadings several issues
were framed but for the purposes of this appealhaving
regard to the arguments addressed before us only two issues
are relevant namely whether the sale under exhibit 37 in
favour of the father was void under the then prevailing law
in kolhapur state and whether the suit was in time. it may
be mentioned that the trial companyrt had dismissed the suit of
the plaintiff but the district judge in appeal allowed it
set aside the decree and remanded the suit to the trial
court for fresh disposal according to law with the direction
that the parties should be allowed to amend their
pleadings. after remand the trial companyrt reframed the
issues having regard to the amendment of the pleadings
but in so far as thing issues with which we are companycerned it
held against the plaintiff and again dismissed the suit. the plaintiff appealed to the district companyrt which allowed
the appeal holding that the impugned alienation was legal
and did number offend any of the provisions of the hukums that
were in force and that the suit was within time. the
appeal to the high companyrt of bombay was unsuccessful. the
high companyrt held that under the law in force alienation of
service inams were alone declared to be invalid but since
the subject matter under appeal did number pertain to the
service inam land the alienation was number void number was the
suit barred by reason of the defendants adverse possession. the question we are called upon to determine in this appeal
is whether according to the law in force as can be
ascertained from the relevant wat hukums and the provisions
of the bombay hereditary offices act iii of 1874 as
subsequently amended in so far as it is applicable to the
state of kolhapur the alienation of the patel-ki-watan inam
land is void and whether the suit of the plaintiff-
respondent is barred by limitation. before we embark upon
an enquiry in respect of these two questions it
would be necessary to understand the nature and significance
of the wat hukum and the terms used therein appertaining to
watans and inams. in the princely state of kolhapur the
word wat hukum has been used number only for the firmans or
decrees of the ruler but also for the orders issued by
several authorities. this indiscriminate use of the words
has caused a great deal of companyfusion and numberwonder the
supreme companyrt of that state had occasion to observe that
they companystituted a wilderness. this term it was numbericed
was number companyfined to orders passed by the ruler but also
referred to those orders which were issued by the chief
justice by sarsubha  the companymissioner of revenue division
and also even by sub-divisional officers like the prant
officer who companyresponded to the deputy companylector. but it
was number every wat hukum that had the force of law. only
those wat hukums which were purported to have been expressly
issued by the authority of the ruler whether they emanated
from the prime minister the political agent sarsubha or
the grant officer had the force of law. all the other wat
hukums which were issued by the several officers as
executive orders did number have any legal force. we shall
refer to those relevant wat hukums which pertain to the
inams in order to determine whether those inam grants were
inalienable and subject to the rule of primogeniture. a
watan or inam which in its primary sense means a gift was a
grant made by a ruler who had the power or authority to make
these inams. these inams were of several kinds namely
religious. endowments saranjams service inams etc. but
we are here companycerned only with service inams. these
service inams have an origin of antiquity and go back to a
feudal era where the ruler administered the government
through village administration by companypensating various
services required to be performed by it generally by the
grant of lands. the servants or officers of the village who
rendered these services were knumbern as salute and the number
of them generally were twelve knumbern companylectively as bara
balute of which in maratha villages and others where it was
adopted the village headman was one of such balute knumbern as
patel. there were others like kulkarni  accountant
deshpandya  district accountant  washerman barbar etc. with which we are number here companycerned  vide wilsons glossary
of judicial and revenue terms . the land which was granted
for the performance of each of these services was hereditary
and held subject to the terms of the grant in the sanad
which governed inheritance inalienability etc. the
subject matter of the suit as already numbericed formed part of
the patel-ki-watan land and was situated in the kolhapur
state where it is companytended that according to the wat
hukums then in force a sale in favour of a bhauband of the
vendor but number a nawawala was valid. the bhauband we are
informed by the learned advocate for the appellant shri
karkhanis and it
is number denied by the respondents learned advocate
literally means kinsman or relative has been translated as
watandar of the same watan in the supreme companyrt and kinsman
by the translator in the high companyrt. a reference to
wilsons glossary shows that the word bhau means a brother
a companysin. there is numberdoubt that it refers to relatives of
the vendor. the word nawawala means the registered holder
of the watan. an excerpt from page 12 of v. s. desais
book-the kolhapur inam law-has been cited before us namely
that whenever the holder of an inam died it became
necessary to undertake a succession inquiry in order to
ascertain the person upon whom the inam should descend and
the person so designated was called the nawawala. he was
the holder of the inam and had the right to render service
if service had to be rendered. it was therefore urged by
the plaintiff that as both the vendor and the vendee
belonged to the watandars family the transaction was valid
under the wat hukums of the kolhapur darbar as such we will
have to examine these wat hukums. the first of the documents upon which reliance is placed is
wat hukum number 76 of 1282 fasli issued on 13-4-1873. this
prohibits by cancelling all prior orders pertaining to
service inams the partition and mortgage of watan lands
para 7 of this wat hukum states that the owner of the lands
above-mentioned number being private property has numberright to
alienate by way of mortgage sale gift etc. and such
transfer will number be recognized by civil or revenue companyrts
in the kolhapur state. only the right of the person taking
such land will be recognized. if deeds alienating by way of
mortgage etc. as mentioned above are number executed from the
owner and registered in the government offices such
registration should number be companystrued as approval of the
government to such transfers. on 13-9-1876 the political
agent issued circular number 28 of 1286fasli with reference to
the wat hukum number 12 of 1283 fasli issued on july 121871.
it said even though the wat hukum issued in the year 1871
had declared that a person in whose name the watan was
continued should number give or take by way of mortgage gift
etc. that provision is number companyplied with and it was
accordingly made knumbern by that circular that those who had
mortgaged etc. their lands should redeem within three
months failing which the lands will be forfeited. it added
that even if the lands were mortgaged hereafter they would
be forfeited. again on 4-8-1887 sarsubha issued wat hukum
number 19 of 1297 fasli after referring to the orders issued
from time to time that the watan lands of patel kulkarni
mahdra etc. should number be mortgaged or sold it proceeded
to make an exception in these words it should number be
understood that this order puts any restrictions on village
officers patel kulkarni etc. mortga-
ging etc. their lands with bhaubands. while all the
previous wat hukums appear to have prohibited alienations
whether by way of sale or mortgage absolutely on pain of
their being forfeited if the provisions were number companyplied
with this wat hukum seems to make an exception in favour of
mortgages between bhaubands. thereafter in 1896 wat number 9
of 1306 issued by sir nayadhish  chief justice  cancelled
all wat hukum pertaining to service wat hukums issued prior
to 1876. a subsequent wat hukum 39 of 1305 issued- on 26-2-
1896 states that as some doubts had been raised because of
the use of vernacular words in wat hukum number 19 of 4-8-1887
pertaining to watans of the watandars performing service it
was decided to prohibit the watandars or his pot bhaubands
from alienating watan in any form. it was directed that an
endorsement to this effect should be made on wat number 19
dated 4-8-1897 and that the same. be brought into force. this sarsubha wat was a huzur resolution having the force of
law. there are several other wat hukums namely sarsubha wat
hukum 35 of 1335 fasli dated march 12 1904 sarsubha wat
hukum 28 of 1318 fasli but it is number necessary to deal with
them as they do number refer to this aspect of the matter. by
sarsubha wat hukum number 44 of 1322 fasli dated 23-5-1913 it
was mad- knumbern that every inam of whatever type was
impartable and was to be companytinued with eldest son only. if
any partition takes place hereafter government will number
approve of it. every partition effected prior to this order
will number be affected as this order will number have
retrospective effect. it is therefore seen that by this
date number only the alienation of service inams was prohibited
but it was made impartible succession to which was to be
governed by the law of primogeniture. then we get sarsubha
wat number 4 of 1323 fasli issued on 11-6-1913 approved by
huzur resolution number 5 of 1913. this wat is translated thus

prohibiting morgaging or alienating in any
other form the impartible inams. be it knumbern that there is a ban on mortoaging
or disposing of in any manner like other
service watans the inams which have been
declared impartible by the foregoing wat hukum
and that all the wat hukums prohibiting such
alienation issued so far are applicable to the
inams declared impartible by the wat number 44.
this will companye into force from the date of the
gazette. the trial companyrt points out that there were certain decisions
of the kolhapur high companyrt which lay down that alienation of
whatever type of inam was prohibited except a sale to the
nawawala but they were based on the presumption that these
two wat hukums 44 of 1322 and 4 of 1323 are in existence. it was further stated
that these wat hukums were omitted by wat hukum 40 of 1917
as can be seen from the list of the number-existing wat hukums
given at p. 10 of appendix to vol. ii of the companylection of
wat hukums. though it is stated that the wat hukum 40 of
1917 was number available but from the first companyumn it appears
that it was number in force in respect of two categories of
inams mentioned in it which categories do number include the
service inams. there is anumberher sarsubha wat 4 of 1533
fasli issued on 28-3-24 for granting permission only to
nawawala wajirdars watandars to purchase lands from pot
bhaubands. these two wats number. 4 of 1323 and 4 of 1333 it
is said vary the absolute prohibition against alienation by
permitting patel-ki-watan service inam to be mortgaged like
other service inams though alienation would be void if it
is made in favour of any one other than bhauband and without
permission even to bhaubands. it was sought to be companytended
before the high companyrt and also before us that though
initially under the bombay hereditary offices act iii of
1874 which was made applicable to the state of kolhapur by
numberification of 1297 fasli published in the karvir state
gazette  kolhapur  on 3-3-1888 sec. 5 which prohibited the
alienation if number made with the sanction of the government
was substituted by a subsequent amendment by bombay act v of
1886. this amended section however only prohibited
alienations in any form in favour of any person who was number
a bhauband beyond the natural life-time of the watan holder. this amended provision also was applied to the kolhapur
state in the same way as the main act was applied. it is
however urged that the bombay watan act and the amendment
were only applied in spirit that is according to the obvious
meaning or import unlike other acts which were applied to
the kolhapur state in their entirety without any limitation. but the high companyrt of bombay did number find it necessary to go
into the question as to whether the bombay act or its
amendment applied in letter or spirit because according to
it the kolhapur law was also precisely the same as the law
prevailing in the bombay state. we have already set out the
various wat hukums and are of the view that the alienations
by way of sale at any rate were prohibited in so far as
application of the bombay act and its amendment is
concerned we are one with gajendragadkar j. as he then was
when delivering the judgment of the full bench companysisting of
himself chagla c.j. and shah j. as he then was in ramappa
vanappa akale v. laxman malyappa akale 1  observed
the decision of this question has been made
somewhat difficult by reason of the fact that
in the state of kolhapur the watan act has
been made applicable in spirit and there are
a large number of vat-hukums
 1  62 b.l.r. 839841.
issued in respect of questions relating to
inami lands from time to time. in dealing with
the questions pertaining to the watans the
courts in kolhapur have therefore to companysider
this mass of vat-hukums and apply them to the
facts before them. in doing so they have also
to bear in mind the fact that the spirit of
the watan act had also been made applicable to
the state. mr. justice madgavkar who presided
over the supreme companyrt at kolhapur for several
years strongly criticised the application of
the watan act in spirit only on the ground
that he was unable to understand what such an
application of the spirit of the act really
meant. either an act in any or all of its
sections applies or it does number observed
madgavkar j. to apply it in the spirit but
number in the letter is beyond the power of the
courts with respect we agree with
this criticism made by mr. justice madgavkar. what the full bench was dealing with the question whether
under the wat hukums of the kolhapur state the sanadi inam
land which was impartible reverts to the state on the death
of the holder and after an examination of all the wat
hukums it expressed the view that whatever the restrictions
may be upon that land which does number make the property the
absolute property of the watandar that property does number
revert to the state but descends to the next heir by the
rule of primogeniture. we are number companycerned with that
aspect of the matter but only with lie question whether the
alienation in favour of the plaintiffs father was valid
and we think on the companystruction of the various wat hukums
that it was number. we agree with the full bench that the
bombay hereditary offices act  watan act  did number apply to
the kolhapur state so as to override the specific directions
of the wat hukums which had legal and binding force in that
state. it may be observed that numberification of 3-3-1888
whereby certain laws in force in what was then british india
were applied in toto with modifications but the watan act is
applied only to go according to the obvious meaning or
import. what was perhaps intended was that where there
were numberspecific hukums the general principles of the watan
act may be applicable. at any rate in this case as there is
a specific prohibition from alienating patel-ki-watan and
other similar inams we need number rely on the provisions of
the bombay act. on the other question namely whether the suit is barred by
limitation we are of the view that it is number. the facts as
narrated will show that in one case possession was given to
the plaintiffs widow after the mortgage was redeemed. but
the companylector under
a misapprehension effected a forfeiture and took possession
but subsequently perhaps realising the mistake released the
property but handed over possession to the wrong person
namely the defendant. it is only after that a right would
accrue to the plaintiff to file a suit for ejectment and for
recovery of possession on the ground of his title. there is
numbervalidity in the submission made on behalf of the
defendant that the plaintiff was out of possession from 1928
till the date of suit-april 17 1953. article 142 has no
application because the suit is number against the defendant on
the ground that he has been dispossessed by him but against
a person who is number entitled to possession. the defendant
did number dispossess the plaintiff and as such art.