PETITIONER: SHRI NARAYAN YESHWANT GORE Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT26/04/1995 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) MANOHAR SUJATA V. (J) CITATION: 1995 SCC (4) 470 1995 SCALE (3)611 ACT: HEADNOTE: JUDGMENT:

O R D E R This appeal is directed against the order passed by <ORG> rejecting the petition filed by the appellant for granting and extending to him the same benefits as were granted to the persons similarly situate in view of the decision given by this Court in <CITATION> . reported in 1986 (1) SCR

211. The brief facts that are necessary to be mentioned are that the appellant joined <ORG> as Inspector on 25th July, 1950. He was promoted as Scrutiny Inspector on 4th November, 1954. He was further appointed as Assistant Superintendent in 1955. On 6th March, 1961, he came to be deputed to <ORG> at Nagpur and worked there from 6th March, 1961 to 21st October, 1969 as a Tabulation Officer. Then he was granted proforma promotion in his parent department. The post of Tabulator was subsequently redesignated as Superintendent. The appellant while working in <ORG> was promoted as Assistant Director of <ORG> operation w.e.f. 21st October, 1969 and continued till 31st December, 1974. While he was working there a question arose about his consideration in the present department. A letter dated 21st January, 1970 which has been extracted by the <ORG> indicates that department considered that since the appellant was in <ORG> and there were short- term vacancies only, it was not necessary to offer the post to the appellant or to ask him to come back to the department. In these circumstances, he continued in <ORG> <ORG>. He could not be given even proforma promotion as there was no regular vacancy. But his appointment as Assistant Director in <ORG> was with the concurrence of <ORG>, <ORG> and <ORG>. In 1975, he came back to his <ORG> and was appointed as Assistant Director on 11.4.1975 on adhoc basis. While he was on deputation in <ORG> his juniors had also been promoted as adhoc in his <ORG>. Some of them were appointed in 1969. On 11th February, 1986 the decision in <NAME> (supra) was rendered by this Court. It was held that all those officers who were appointed as Assistant Directors in the Organisation should be deemed to have been appointed substantively from the date of their adhoc appointment. In consequence of this decision, those juniors who had been appointed on adhoc basis in the <ORG> between 1969-75 became senior to the appellant. Reason for it was that the decision has confined the applicability of benefit to only those who were working in the <ORG>. Since the appellant was working in <ORG> and he was appointed adhoc in the <ORG> from 1975, he was appointed substantively from that date only. The appellant, therefore, was left with no option except to approach the <ORG> which has recorded every finding in favour of the appellant but expressed its inability to grant any relief as in view of the decision of this Court he could not be deemed to be ad hoc appointee in the <ORG>.

The facts narrated above clearly indicate that the appellant was similarly situated along with those who were granted benefit by this Court. May be, he was working in <ORG>. But since the post in <ORG> and in the parent <ORG> was ad hoc post and the <ORG> itself considered that his continuance in <ORG> did not affect him and, therefore, he was not offered the post of Assistant Director in the parent <ORG>, he could not be prejudiced. The benefit given in <NAME> (supra), therefore, should be extended to the appellant and he too should be deemed to have been working as Assistant Director on adhoc basis in the parent <ORG> in Grade IV since October, 1969. He should be deemed to have been confirmed from the date his junior was confirmed.

We further find that <NAME>, one of the juniors of the appellant was promoted as ad hoc on 22nd May, 1986 after the decision was given by this Court calculating his seniority from 1969 and he was given promotion in 1986 as Deputy Director with effect from 17.3.1983. It is not disputed that the post of Deputy Director is a promotional post. It is not a selection post. Since the appellant was senior to Shri Chaurasia who was promoted as Deputy Director from 1983, the appellant too shall be deemed to have been promoted as Deputy Director from 17.3.83.

The appeal is accordingly allowed. The order of the <ORG> is set aside. The claim petition of the appellant succeeds in the manner indicated above.

We are informed that the appellant has retired. He shall be entitled to all the benefits which flow from this order. There shall be no order as to costs.


PETITIONER: COMMISSIONER OF GIFT TAX, <NAME> Vs. RESPONDENT: N. S. GETTY CHETTIAR DATE OF JUDGMENT16/09/1971 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. GROVER, A.N. CITATION: 1971 AIR 2410 1972 SCR (1) 736 ACT: Gift Tax Act , 1958- Section 2(xii) and 2(xxiv) --Coparcener taking lesser share and allotting greater share to other members-If makes "gift"-Partition, if "transfer of property". HEADNOTE: In a partition of the properties of a joint Hindu Undivided Family a coparcener took as his share less than what he was entitled to and allotted greater share to the other members of the coparcenery. On the question whether the coparcener could be held to have made a "gift" of a portion of his share of the property to the other members and was liable to tax under the Gift Tax Act , 1958. HELD:(i) A coparcener in a Hindu Undivided Family has no definite share in the family property. His share gets determined only when there is a division of status or a division by metes and bounds. It is not necessary that in every case of partition in a Hindu Undivided Family there should first be a division in status and thereafter a division by metes and bounds. In the present case there is no material to show that there was any division of status before the properties were actually divided. Therefore, it is not necessary to consider what would be the position in law if there was just a division of status and the same was followed by a division by metes and bounds. [738 H-739E] (ii)The partition of the joint Hindu Family property is not a transfer <CITATION> , 55 I.T.R. 637, followed. (iii)A partition is not a "disposition" "conveyance" "assignment" "settlement" "delivery" "payment" "or other alienation of property" within the meaning of those words s. 2(xxiv) of the Act. These words are used as some of the modes of transfer of property and have to be understood in the setting in which those terms are used and the purpose they are intended to serve. [742-G] It cannot be considered a "transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person" within the meaning of cl. (d) of s. 2(xxiv) , because, a member of a Hindu Undivided Family who has no definite share in the family property before division cannot be said to diminish directly or indirectly the value of his own property and to increase the value of the property of another person. Further, the transaction referred to in cl. (d) of s. 2(xxiv) takes its colour from the main clause i.e., it must be transfer of property in some way. [742 H-743 C] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 128 of 1968 and 1341 of 1971.

Appeals by certificate/special leave from the judgment and order dated December 10, 1965 of <ORG> in Tax Case No. 65 of 1967 (Reference No. 18 of 1963).

<NAME>, Solicitor-General, <NAME>, <NAME> and <NAME>, for the appellant (in both the appeals).

<NAME> and <NAME>, for the respondent (in both the appeals).

The Judgment of the Court was delivered by <NAME>, J. Both these appeals by the Commissioner of Gift Tax arise from the same judgment. The former one is by certi- ficate and the latter by special leave. Civil Appeal No. 1341 ,of 1971 came to be filed because the certificate given by <ORG> not being supported by any reason, the appeal brought on the strength of that certificate (Civil Appeal No. 128 of 1969) became unsustainable. That is why instead of one appeal, there are two appeals before us in respect of the same decision.

The decision appealed against was rendered by <ORG> in its advisory jurisdiction, in a reference under s. 26(1) of the Gift Tax Act , 1958 (to be hereinafter referred to as the Act). <ORG>, Madras Bench referred the question a, "Whether there was gift by <NAME> of Rs. 2,46,377 on which he is liable to pay gift tax" to <ORG> seeking its opinion. <ORG> answered that question in the negative. The Commissioner of Gift Tax not being satisfied with that decision has brought these appeals.

The facts of the case are not many though the question of law arising for decision is by no means easy. The respondent, <NAME> (who will hereinafter be referred to as the assessee) was karta of his undivided Hindu family consisting of himself, his son <NAME> and six sons of the asid <NAME>. There was a partition of the immovable properties of the family through a registered deed executed on January 17, 1958 and the movable properties were divided on April 13, 1958 on which date the necessary entries in the account books were made. The assessee claimed recognition of that partition under s. 25A of the Act. That was granted by the <ORG> on November 29, 1958. The total value of the properties so divided was Rs. 8,51,440/- but under that partition the assessee took properties worth only Rs. 1,78,343/-. The remaining properties were allotted to his son and grandsons.

The Gift Tax Officer overruling the objection of the assessee, came to the conclusion that the assessee by allotting greater share to the other members of the coparcenary than to which they were entitled, must be held to have made a 'gift' of a portion of his share of the property to the other members and hence was liable to be taxed under the Act. He, opined that the partition in question is a transaction entered into between the assessee and the members of his family with intent thereby to diminish the value of assessee's own property and increase the value of the property of his son and grandsons.

Aggrieved by that order, the assessee went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner held that as no member of an undivided Hindu Family had a definite share in the family assets, on partition, when the joint enjoyment came to an end, there was no need to have arithmetical equality between the shares of the various coparceners. He accordingly held that the assessee was not liable to pay any gift tax in respect of the properties that fell to the shares of his son and grandsons. The <ORG> appealed against this decision to the <ORG>. It was contended before the <ORG> 'that the transaction in question came within s. 2

(xii) and s. (xxiv), in particular it came within cl. (d) of s. 2 (xxiv), as property included any interest in property and partition constituted a transaction; the assessee had, by relinquishing a portion of what was his due, transferred such interest and properties in favour of the other members of the family for no consideration and consequently the Gift Tax was properly leviable. This contention was not accepted by the <ORG>. It held that the interest that the assessee had in his <ORG> property was not definable, and therefore s. 2(xxiv) was not attracted to the facts of the case.

<ORG> agreed with the conclusions reached by the Assistant Appellate Commissioner and the <ORG>. It came to the conclusion that the partition in the family of the assessee did not come within the mischief either of s. 2(xii) or s. 2(xxiv) . It also opined that under the partition, there was no deemed 'gift' as contemplated by s. 4 of the Act.

Mr. Solicitor-General appearing for the Commissioner of Gift Tax did not place any reliance before us on s. 4 of the Act. Therefore we need not consider the scope of s. 4 of the Act. All that Mr. Solicitor General contended was that the case came either under s. 2(xii) or under s. 2(xxiv) . He built up his arguments thus A partition in a <ORG> invariably involves two steps, first there is a division of status and thereafter there is a division by metes and bounds. A coparcener's share is fixed according to law as soon as there is a division of status. Therefore, if at the time of division by metes and bounds he chooses to take a share less than to which he is entitled to under law, then the same: would amount to a 'gift' of the balance of property to which he was entitled, to the other coparceners. We are unable to agree with Mr. Solicitor General that in every case of partition in a <ORG> there' should first be a division of a status and thereafter a division by metes and bounds. There are innumerable cases where a partition takes place without there being earlier any division of status. Coming to the facts of the case, there is no, material before us to show that there was any division of status before the properties were actually divided. The <ORG> has, not found that there was any division of status amongst the members of the family before they divided the properties. The partition deed is not before us nor are the account books showing the division of the movable properties is before us. It is not known whether under the registered partition deed, there was only a partial partition or a complete disruption of the family. That being so, we have to proceed on the basis of the facts found by the <ORG> and apply the law to the facts so found. The argument that there was first a division of status and the same was followed up by a division by metes and bounds does not appear to have been urged before the <ORG>. Under these circumstances, it is not necessary for us to consider what would be the position in law if there was first a division of status in a <ORG> and the same was followed up by division by metes and bounds in which division one of the coparceners takes properties, less than to what he is entitled to under law.

Before proceeding to examine the relevant provisions of the Act, it is necessary to mention that according to the true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share namely a third or a fourth. All the coparceners in a Hindu joint family are the joint owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family is. His share gets determined only when there is a division of status or a division by metes and bounds. Therefore it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property, before its division. Having stated that much, let us now proceed to consider the relevant provisions of the Act.

Section 3 of the Act is the charging section. It says:

"Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the 1st day of April 1958, a tax (hereinafter referred to as gift-tax) in respect of the gifts, if any, made by a person during the previous year (other than gifts made before the 1st day of April 1957) at the rate or rates specified in the schedule." 'Gift' is defined in S. 2(xii) . That sub- clause says:

" "gift" means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer of any property deemed to be a gift under section 4 ."

The expression 'transfer of property' is defined in S. 2(xxiv) That provision reads :

" "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and,' without limiting the generality of the foregoing, includes-

(a) the creation of a trust in property;

b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property;

(c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than donee of the power; and

(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.' We shall first examine whether the partition with which we are concerned in these appeals can be considered as transfer of property under the general law. Thereafter we shall proceed to consider whether it comes within the extended meaning given to that expression in s. 2(xxiv) . It is now settled by the decision of this Court in Commis- sioner of Income-tax, Gujarat v. <NAME>) that a partition of joint Hindu family property cannot be considered as transfer in the strict sense-the sense in which all legal expressions are understood and more particularly in tax (1) 55 I.T.R. 637.

laws. In the course of that judgment <NAME>, <NAME> (as he then was) speaking for the <ORG> observed :

"But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not. This was so held in <CITATION> (1). <NAME>, J., (then a judge of <ORG>) after examining several authorities came to the conclusion that " partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary." <ORG> again examined the question in <CITATION> (2) with reference to section 16(3)(a)(iv) . It observed that "obviously no question of transfer of assets can, arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-incommon. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-incommon to each of such tenants-in- common."

<ORG> came to the same conclu- sion in <CITATION> (3). Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within section 16(3)(a)(iii) and (iv) to the wife or the minor son."

We are bound by the ratio of that decision and if we may say so, we respectfully agree with the statement of the law quoted above. Hence we hold that the partition in the family of the assessee did not effect any transfer as generally understood in law.

This takes us to to s. 2 (xxiv). The opening words of the provision refer to 'transfer of property'. That clause enumerates several types of transfers and not to any other transactions. It is also necessary to attach significance to the words "or other alienation of property" immediately after setting out the various (1) I.L.R. 1951 Mad. 607. (2) (1961) 41 I.T.R. 297. (3) (1962) 64 P.L.R. 22.

types of transfers. 'If we read the clause as a whole, it is clear that it deals with transfer of properties in various ways.

As observed in Craies on Statute Law (6th Edn. p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary to be applied to some things to which it would not ordinary be applicable.

Bearing in mind these principles, let us now examine the scope of s. 2(xxiv) . That provision speaks of "disposition", " conveyance", "assignment", "settlement", "delivery", " payment" or "other alienation of property". A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment", "settlement", "delivery" and "payment" are used as some of the modes of transfer ,of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms .are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of one's property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a H.U.F. can be considered either as "disposition" or "conveyance" or "assignment" or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in s. 2 (xxiv).

This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person. A member of <ORG> who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of s. 2 (xxiv) takes its colour from the main clause viz., it must be a transfer of property in some way. This conclusion of ours gets support from sub-clause (a) to

(c) of clause (xxiv) of s. 2 , each of which deals with one or the other mode of transfer. If the parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say 2. In interpreting tax laws, courts merely look at the works of the section. If a case clearly comes within the section, the subject is taxed and not otherwise. For these reasons, we agree with the view taken by <ORG>,, <ORG> and the Assistant Appellate Commissioner that the assessee made no "gift" under the partition deed in question.

In the result these appeals fail. Civil Appeal No. 1341 of 1971 is dismissed on merits and Civil Appeal No. 128 of 1969 is dismissed as being not maintainable. The assessee is entitled to his costs-Fee one set.

K.B.N. Appeals dismissed.


<NAME>, J.

1. The facts appear sufficiently from the judgment of the <ORG>. <NAME> and <NAME>, for the appellants. <NAME> and <NAME>, for the respondents. Lord <NAME>. This is a consolidated appeal from a judgment and two decrees of <ORG>, dated September 22, 1927, which affirmed a judgment and two decrees of <ORG>, <NAME>, dated March 31, 1923, and made in original suits Nos. 86 of 1919 and 83 of 1922.

2. In original suit No. 86 of 1919, the appellants sue the respondent No. 1, in appeal No. 64 of 1930, and his minor son, to whom he is guardian ad litem, respondent No. 2 in said appeal, for damages for breach of contract in respect of five contracts of sale of bales of yarn made between August 10 and 19, 1918, and this suit has been dismissed by the <ORG> below." In original suit No. 83 of 1922 the respondent No. 1 in the above appeal sues the appellants for an amount due in respect of goods supplied, and this suit, out of which the second appeal arises, has been decreed in the respondent's favour, the only defence of the appellants having been that the amount so due has been taken into account in their claim against the respondent in suit No. 86 of 1919.

3. The five contracts (exhibits A, B, C, D, and E) were for the purchase of 155 bales of yarn in all, the respective quantities and description being as follows :-

A.-Ten <ORG> yarn bales and five <ORG> yarn bales, B.-Forty-five <ORG> yarn bales C-Sixteen Astodia yarn bales, D.-Forty-five <ORG> yarn bales and ten <ORG> yarn bales, and E.-Twenty-four <ORG> yarn bales.

4. Up to October 11, 1918, delivery had been made and accepted of five <ORG> bales under contract A, thirty <ORG> bales under B, and seven Broach bales under E. No question arises as to the ten Jemsetjee bales under D, and they need not be further referred to. It may be taken, as the admitted result of the findings of the Courts below, that no further delivery was offered or asked for until December 19, 1918. The respondents had not paid in full for the. bales already delivered, and respondent No. 1 admits that he was indebted to the appellants for over Rs. 26,000 by the end of October. This indebtedness, however, was subsequently discharged by him. It may be added that a serious fall in prices began in the month of September, with, further gradual falls in the next three months.

5. On December 19, 1918, the appellants sent a lawyer's letter to the respondents an the following terms :-

You have struck a bargain with the people of <ORG> (shop) pertaining to our clients, <ORG> and <ORG>, agreeing to take delivery from time to time of 160 bales of different sorts of yarn according to different rates and to pay the amount forthwith. Out of that you have taken delivery from time to time of 54 bales and paid some amount. Still there is due' about Rs. 24,000 and interest in respect thereof, Out of the bales to be delivered. . to you, 5 bales of No. 40 <ORG> yarn and 5 bales of No. 40 Rayapur yarn, in all 10 bales are ready at Chirala and 45 bales of No. 26 <ORG> yarn at Guntur.

You are hereby informed that you should within 31-12-18 pay money and take delivery of the 10 bales of Gayigoda and Rayapur yarn, that you should take delivery of No. 26 Goka bales at; Guntur if you so please, that if you do not agree to the same and want the goods to be sent to Chirala alone, our clients are ready to despatch them, that you should, by return post, inform our clients about your opinion as regards this, that intimation would be given as soon as the other goods are ready, that, if you fail to take delivery of the goods that are ready, you would be liable to the: entire loss caused to our clients, that you should forthwith pay also the principal and interest due by you to our clients as per khata in respect of goods previously taken delivery of and that, otherwise, a suit would be instituted.

6. To this the respondents sent a reply, also drawn by a lawyer, and dated-January 3, 1919, in the following terms :-

Notice issued by <NAME>, <ORG>, Madras, on behalf of <NAME>, to <NAME>.

7. My client gave me the notice dated 19-12-18 sent to him by you on behalf of Nune Ranganayakulu Garu and <NAME> residents of Guntur, with instructions to give a reply thereto with the matters herein below. I have, therefore, to-, inform you as follows :-

According to the arrangements effected between your clients and my client, your clients are bound to deliver all the goods relating to the contracts mentioned in your notice, within two months from the dates of the respective contracts. When you have-failed to do so my client is not bound to take delivery of the goods after the expiry of the due date. According to the said terms, my client has taken delivery of all goods delivered by your clients within the due date. My client has no objection whatever to pay the amount ascertained to be due to your clients on looking into-the accounts relating thereto. It is very strange to write, long after the expiry of the due date, that some goods are now ready, that they should be taken delivery of, and that intimation would be given as soon as the remaining goods are got ready. Your client has no right, to ask that the goods should be taken delivery of after such an unreasonable delay. My client is not bound to take delivery either of the goods; alleged to have been made ready now or of the goods that might be made ready hereafter. Only on account of the default of your clients, the contracts relating to' the said goods were not enforced. They have been cancelled. My client is not liable: to pay any damages whatever to your clients. Because your clients were unable to pay the amount due to the mill people, and because your clients were unable to; get goods in time from the mill or to take delivery even of the goods received, not only did you fail to supply goods to my client as per contracts but you also write that some goods are ready because the prices have now fallen very low, devising some plan with the evil intention of obtaining wrongful gain. It is learnt that, even as-regards the goods which your clients have intimated that they are ready, some have not as yet been delivered to your clients. If however it is held for argument's sake that there is nothing like two months' time all the said contracts are void and are not at all valid in law, Your clients will not have any benefit in the least from such contracts.

Be pleased to consider.

8. The appellants responded on January 23, 1919, as follows :-

The registered letter written on 3-1-1919 by <NAME> on your behalf to <NAME> and <NAME> has been sent to us with instructions to reply to the said letter in this manner. No arrangement was ever entered into between you and our clients, as mentioned in your letter, to deliver the goods either within two months of the 'date of contract, or within any other time-limit or within any stipulated period. It is also improbable that it should have been effected in the said manner. While you were unable to : pay the entire amount, took delivery only of some goods mentioned in the contract out of the goods sent by the mill people to our clients and while unable to pay in full the entire amount also due therefor, you stated that our clients are unable to pay the amount, that they could not deliver the goods, that the contract which was in force when the prices were high have now become void in law, that there was time fixed for the delivery of the goods, and that there was unreasonable delay in excess of the time fixed. While our clients were intimating by means of a registered letter that the goods were ready, you entertained doubts even about it and set up false matters bringing into existence imaginary difficulties on account of the present market rate and that we would not at all be benefited thereby. You are hereby informed that, within the end of this month, you should pay the amount due for the 5 bales of No. 40 Gaigoda yarn and for the 5 bales of No. 40 Rayapur yarn, in all, for 10 bales remaining at Chirala with our clients on your account, and the 45 bales of No. 26 <ORG> remaining in Guntur which are ready, as well as the sum of Rs. 15,500 due to our clients as per previous khata together with the interest thereon and should take delivery of the same; that if you should still entertain the doubt that the goods are not ready, and if you should pay the amount to us, the goods would be arranged to be delivered at our office whenever desired by you ; that, if you fail to do so, the 5 bales of No. 40 Gayigoda yarn and the 5 bales of No. 40 Rayapur yarn, in all, 10 bales remaining at Chirala, will be sold in public auction on 2-2-19 at your risk in Chirala market by M.R.Ry. Kona Venkata Rao Pantulu Garu, Vakil, District <ORG>, Baptala, and the 45 bales of No. 26 <ORG> yarn will be sold in public auction on 6-2-19 at your risk, at the office of Messrs. <NAME> and Co., in Guntur Bazar by <NAME> and that a suit will be instituted without any fresh notice, for the balance sum due to our clients after deducting the net amount realised by the sale after meeting the expenses, and for the amount due on <NAME>. Be it known further that, as you have informed our clients toy means of the reply dated 5-1-1919 given by you that you do not require the goods remaining in respect of your bargains, my clients are entitled to recover the loss according to the price prevailing in the market on the said date, that you should settle the affair by calculating the amount in the said manner that, if you fail to do so, a suit will be instituted therefor also and that interest at Re. 1 per cent, per mensem will be charged on the said amount of damages from 5-1-1919.

Thereafter the appellants sold the fifty-five bales by public auction, and, on August 14, 1919, they brought the present suit against the respondents for the balance due on the bales sold in auction and for damages in respect of the remaining bales undelivered under contracts B, C and E.

9. The main question is whether the respondents were justified on January 3, 1919, in treating the contracts as cancelled, or whether the appellants were justified, on January 23, 1919, in treating the respondents as having thereby unjustifiably repudiated the contracts. The decision of this question turns on determination of the exact nature of the contractual obligations as to delivery.

10. The appellants maintained that-there being no express stipulations in the written contracts-the contracts are governed by Section 93 of the Indian Contract Act (IX of 1872), which provides as follows :-

93. In the absence of any special promise, the seller of goods is not bound to deliver them until the buyer applies for delivery.

11. Although Part VII of the Indian Contract Act, which included this section, has since been repealed by the Sale of Goods Act (III of 1930), the section re-appears as Section 35 of the- latter Act but with substitution of the words "Apart from any express contract" for the words "In the absence of any special promise," The appellants also maintained that the respondents were not entitled to seek to justify their repudiation of January 3, 1919, except on the two grounds stated in their letter of that date, and, further that, assuming Section 93 did not apply, the respondents were bound, even after the expiry of a reasonable time for delivery by the appellants, to ask the appellants if they would deliver, before they were entitled to treat the contracts as cancelled.

12. The respondents maintained that Section 93 does not apply to the suit contracts, and that, as the <ORG> below have concurrently found that the reasonable time for delivery under these contracts had expired at latest by the end of November, 1918, they were entitled on January 3, 1919, to treat the contracts, as cancelled. The respondents further maintained that the appellants' offer of the fifty-five bales on December 19, 1918, was not a genuine offer, but this seems to be irrelevant if the respondents were under the obligations of Section 93 . They further questioned the genuineness of the auction sales of these fifty-five bales, but that is a minor point which will be considered later.

13. It is necessary to advert to the course of the case in the Courts below.. Before the trial Judge, the appellants do not appear to have founded on section 93 , but they led evidence to prove that they had made oral offers of delivery prior to December 19, 1918, and that in November the respondents had come to a settlement of the matter, which they had departed from. The trial Judge held against both these contentions. The respondents, on the other hand, maintained (a) that delivery within two months was a term of the contract, (b) that, failing that, the contracts were void from vagueness and uncertainty, and (c) that, in any event, the appellants were unable to deliver and did not offer to deliver the goods within a reasonable time from the dates of the suit contracts, and that the respondents were therefore justified in rescinding the contracts. The trial Judge held against the respondents on (a) and (b), which were the grounds stated in the respondent's letter of January 3,, 1919, but decided in their favour on (c), holding that reasonable time for delivery had expired at latest by the end of November. On appeal by the appellants, <ORG> held that Section 93 did not apply to the suit contracts, and concurred with the decision of the trial Judge. They stated their reason for holding Section 93 to be inapplicable as follows :--

That contention is against the plaintiffs' pleadings in the suit; it is against the-evidence of <ORG>, their senior clerk, agent and accountant, as to the custom of their business in respect of such contracts ; it is against the very nature of the contracts-themselves, under which the plaintiffs were to procure from distant parts of India goods, the arrival of- which would be within their knowledge and not within the knowledge of the defendants.

14. It is important to observe that Section 93 applies unless there is a "special" promise," which, in their Lordships" opinion, indicates an express stipulation as-to delivery which relieves the buyer from the obligation to apply for delivery, or the necessary implication of such a stipulation from the nature of the contract as expressed. It might also arise out of usage or custom of trade, as-provided in Section 1 of the Indian Contract Act. But, in their Lordships' opinion, an obligation-assuming that it existed in the present case, as is suggested by <ORG>-on the seller to inform the buyer when the goods are in a deliverable state is not a special promise within the meaning of Section 93 , though it may postpone the obligation of the buyer to apply for delivery, and, oh the elapse of a reasonable time to enable the goods to be procured by the seller from the mills, the buyer would be entitled and bound to apply for delivery.

15. There is no case made or proved of custom or usage of trade, and their Lordships are of opinion that, looking at the evidence as a whole, it is neither proved as a term of the contracts, nor is it a necessary implication from the nature of the contracts, that the buyer was to do nothing until he received an intimation from the seller of the arrival of the goods from the mills. If that be the right view, then there is no special promise, such as would exempt the buyer from his obligation under Section 93 . It must be remembered that, when the buyer applies for delivery under Section 93 , it will be a question depending on the nature and circumstances of the particular contract as to the time within which the seller is bound to comply with the buyer's demand.

16. Their Lordships are therefore of opinion that the respondents failed to fulfil their obligation under Section 93 , and that they were not entitled on January 3, 1919, to treat the contracts as cancelled.

17. In maintaining that the respondents were not entitled to justify their repudiation of January 3, 1919, except on the two grounds then stated, the appellants founded on the case of <NAME> v. <ORG> [1905] 2 K.B. 343, but that case related to the effect of repudiation by a party to a contract as involving waiver of performance by the other party, who was not the repudiating party, of any contractual obligations subsequent to the date of the repudiation, and, in so far as any judicial dicta in that case may be said to go further and are in conflict with the principle as expressed by Lord <NAME> in British and <ORG>. v. <ORG> [1923] A.C. 48, 71, foot, their Lordships are of opinion that they are incorrect, and that the respondents are entitled to justify their repudiation on any ground which existed at the time of the repudiation.

18. The respondents also sought to maintain that, before the date of their repudiation, the appellants had disabled themselves from fulfilling the balance of the contracts, by cancelling their contracts with the mills, or having pledged some bales received from the mills with the bank. But there is no evidence to show that, if the respondents had applied for delivery and at the same time tendered the contract price, as they were bound to do, the appellants would not have been able to satisfy the demand. Such a contention more naturally arises where particular goods have been specifically appropriated to the contract. Their Lordships are also of opinion that the contention of the respondents that the appellants by their conduct had waived or dispensed with the respondents' obligation under Section 93 is not supported by the evidence. It is unnecessary to deal with the contentions of the parties on the assumption that Section 93 does not apply to the suit contracts.

19. The respondents' charge against the bona fides of the sale of the fifty-five bales by auction was based on a finding of the learned trial Judge, The matter was not referred to by <ORG>, as it was not necessary for them to consider it. The Trial Judge based his finding that the sale of the whole fifty-five bales was a sham on the admissions of the appellants' first witness, already referred to above. The evidence is that one <NAME> purchased the first lot of two bales of Raipur yarn for Rs. 1,300, that he did not purchase on behalf of the appellants, and that the appellants advanced that sum to <NAME> and debited him with the amount. Their Lordships are unable to agree with the trial Judge that such evidence proves that the sales were a sham. No attempt was made to prove that the appellants had retained the bales. The evidence only related to two bales out of the 55, and the price given for these two bales was only one anna less than was immediately thereafter given for the second lot of three Raipur bales by a purchaser against whom no suggestion has been made ; both lots were the subject of contested bidding.

20. Their Lordships therefore hold that the appellants were entitled to treat the respondents' letter of January 3, 1919, as a wrongful repudiation of the five suit contracts and to rescind the contracts and recover damages from the respondents. It will be necessary to remand both suits for the ascertainment of the damages in original suit No. 86 of 1919, the liability, of the appellants under original suit No. 83 of 1922 being taken into account in arriving at the appropriate decrees in both suits.

21. Accordingly, their Lordships will humbly advise His Majesty that the judgment and two decrees of <ORG> dated September 22, 1927, and the judgment and two decrees of the Subordinate Judge dated March 31, 1923, should be set aside and that both suits should be remanded to <ORG> as already mentioned. The appellants will have their costs in the consolidated appeal, and in the proceedings in the <ORG> below prior to this time. The costs of the future proceedings in India will be dealt with by the Court disposing of the case.


JUDGMENT <NAME>, J.

1. This Rule raises a question of first impression and of considerable importance, namely, whether this <ORG> is competent to make an order for stay of proceedings in execution of its decree, in view of an application by the judgment-debtor to <ORG> for special leave to appeal to His Majesty in Council. The circumstances, under which the application has been made, are not disputed and may be briefly stated. The petitioners were defendants in a mortgage suit. The <ORG> of first instance dismissed the suit on the merit. On appeal to this <ORG>, that decree was reversed and the usual mortgage decree made on the 16th February 1911. The defendants applied to this <ORG> for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, on the ground that the decree did not involve a claim to a property of the value of Rs. 10,000 or upwards. The defendants applied to this <ORG> to review this order; that application was refused on the 16th April 1912. The position, therefore, is that in so far as the <ORG>s of this country are concerned, the mortgage decree has become final. On the 7th July 1912, the defendants, however, made the present application for a stay of proceedings in execution of our decree, for which the decree-holder had applied to the <ORG> below on the 2nd November 1911, during the pendency of the application in this <ORG> for leave to appeal to His Majesty in Council The present Rule was granted on the application of the 7th July 1912. The petitioners state in their affidavit that they have taken steps to apply to <ORG> for special leave to appeal to His Majesty in Council, and at the hearing before us, the learned <NAME> for the petitioners stated that the papers and costs have been transmitted to their Solicitors in England. The decree-holders opposed the application on the ground that as in appeal or application for leave to appeal is pending in this <ORG> or elsewhere, the <ORG> has no jurisdiction to grant a stay of proceedings. It is not disputed that there is no statutory provision applicable to this question; indeed, the absence of a provision in this behalf is not a matter for surprise, because the Code of Civil Procedure does not deal with applications for special leave to appeal to His Majesty in Council, though Section 112 of the Code of 1908 declares that nothing in the Code shall be deemed to bar the full and unqualified exercise of His Majesty's pleasure in receiving or rejecting appeals to His Majesty in Council. The question, therefore, arises whether this <ORG> is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the <ORG> has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the <ORG>. The existence of this inherent power to do justice has been recognized from the earliest times, <NAME> v. <NAME> 9 W.R. 402; B.L.R. Sup. Vol. 985 and has been repeatedly affirmed: <NAME> v. <NAME> 3 C.L.J. 29 and <CITATION> 3 O.L.J. 67; 33 0. 927. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised; it is exercised ex debito justitiae, to do that real and substantial justice for the administration of which alone the <ORG> exists. In other words, as Mr. Justice <NAME> puts it in <CITATION> 3 O.L.J. 67; 33 0. 927 the <ORG> in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the <ORG>. It is not necessary for my present purpose to formulate the circumstances under which a <ORG> will exercise its inherent power; various instances will be found mentioned in the judgments in <CITATION> 3 O.L.J. 67; 33 0. 927. Amongst obvious cases may be mentioned, consolidation of suits and appeals, postponement of the hearing of a suit pending the decision of a selected action, stay of cross-suits on the ground of convenience, inquiry as to whether all the proper parties are before the <ORG>, entertaining an application of a stranger to be made a party, the addition of a party, entertaining a defence in forma pauperis, deciding one question while reserving another for investigation, remanding a suit which has not been properly tried, staying the drawing up of the <ORG>'s own order, suspending the operation of the <ORG>'s order, staying proceedings pending an appeal in a guardianship matter and appointing a temporary guardian ad interim, applying the principle of res judicata to execution proceedings for the sake of finality, punishing contempt of <ORG> committed when the <ORG> is not sitting, deciding questions of jurisdiction though the <ORG> is ultimately found not to have jurisdiction over the suit, directing a party who has applied for leave to appeal to His Majesty in Council to pay costs on the dismissal of his application, amending decrees or orders, granting restitution in cases of reversal of execution sales and orders in execution proceedings, restraining by injunction a person from proceeding with a suit in the Small Cause <ORG>, staying proceedings pursuant to its own order in view of an intended appeal, and treating an application for revision as an appeal and vice versa: <CITATION> 25 C.757; 2 C.W.N. 529; <CITATION> 29 C. 644; <NAME> v. <NAME> 26 A. 358; (1904) A.W.N. 50; <NAME> v. <NAME> 2 A.L.J. 18. Let me examine the matter before us in the light of this principle. The decree-holders contend that the <ORG> is not competent to grant a stay, because no appeal or application for leave to appeal is pending here or elsewhere. This argument is based on the assumption that the <ORG> has authority to grant a stay, only when an appeal or an application for leave to appeal is pending. The assumption is groundless and is negatived by Order XLI, Rule 5(2), of the Code of 1908, which expressly recognises the position that an original <ORG> may, for a limited time, stay proceedings in execution of its own decree, in view of a possible appeal to a superior tribunal. The principle, thus recognised by the <ORG> in express terms, furnishes, in my opinion, a useful guidance in the determination of the question, how the inherent power of this <ORG> should be exercised in a matter of this description. That the <ORG> has inherent power to stay proceedings pursuant to its own order in view of an intended appeal, even though there is no express statutory provision in that behalf, is conclusively shown by the case of <ORG> v. <NAME> 5 O.W.N. 781. This is one aspect of the matter. Another point of view is of equal, if not greater, importance. <ORG> have laid down, in <CITATION> 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) that as soon as an appeal has been admitted by special leave of His Majesty in Council, the High <ORG> is vested with authority to stay execution, in the same manner as if leave to appeal had been granted by the High <ORG> itself. Consequently, if the proposed application by the petitioners for special leave to appeal to His Majesty in Council is granted by <ORG>, this <ORG> will be competent to stay proceedings under the authority of the decision just mentioned. The <ORG>, therefore, ought now to act in aid of a possible order for stay that may hereafter have to be made. If the contrary view is taken, what is the result? Assume that the present application for stay is refused, and the decree-holders are permitted to sell the mortgage properties; the application for special leave is granted by <ORG>, and an application then made to this <ORG> by the judgment-debtors for stay of proceedings. Are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous? I am strongly of opinion, after most anxious consideration of the subject, that the <ORG> should not tolerate such a result, and as I have shown, the position may be avoided by the recognition of sound judicial principles. The decree now under execution was made by this <ORG>, and the <ORG> has control over it, so as to enable the <ORG> to stay proceedings in view of a possible appeal to His Majesty in Council. It is fairly obvious that if the contention of the decree-holders were to prevail, the gravest injustice might be done to litigants. An application to <ORG> for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, inspite of the utmost expedition, in the preparation and transmission of papers. Besides, their Lordships of <ORG> do not hold their sittings continuously throughout the year, and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council; if, meanwhile, his properties are allowed to be sold up by the decree-holders on the theory that this <ORG> is powerless to interfere, not only may an application for stay after the grant of the special leave, as contemplated by <ORG> in <NAME> v. <NAME> 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) become infructuous, but the appeal admitted by special leave of their Lordships of <ORG> may turn out to be wholly illusory and ineffectual.

2. It cannot seriously be maintained that the grant of a stay in any way throws doubt on the decree or weakens its effect; the stay is granted on the principle that the parties should, if the circumstances justify the adoption of such a course, be retained in status quo till the validity of the decree has been tested in the Court of ultimate appeal.

3. The exercise of the inherent power of the <ORG> should thus be widened to aid the administration of justice and not unduly restricted so as to cause needless hardship to litigants and a possible failure of justice. I hold, therefore, that this <ORG> has authority to grant this application. The stay, however, can be granted only for a limited time, and on terms. The rule, in my opinion, should be made absolute and execution proceedings stayed till the 30th November 1912, and the <ORG> below directed to value the mortgage properties and the judgment-debtors called upon to furnish security for so much of the judgment debt as may exceed the value so determined; if security is not furnished within a time to be prescribed by the <ORG> below, the decree-holders will be entitled to proceed with execution of their decree.

4. The Rule is made absolute on these terms, under Clause 36 of the Letters Patent, but there will be no order for costs.

Holmwood, J.

5. I am not prepared to differ from my learned brother upon the general point he makes that this <ORG> has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the <ORG>. But there are numberless cases where the parties come to this <ORG> asking for a relief which it is not competent for them to seek, and the <ORG> does not in practice make use of its inherent powers to extend a procedure, which does not apply to a particular case, to such a case. For instance, the <ORG> does not ordinarily allow an application for revision to be treated as an appeal, far less does the <ORG> go outside its own walls to deal with parties who have no pending litigation before it.

6. To my mind, the use of the inherent power in this case would be an abuse of the process of the <ORG>.

7. Here is a case of a mortgage suit, valued at less than Rs. 10,000, which was dismissed in the Court of first instance but decreed on appeal to this Court on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, and the suit being of less value than Rs. 10,000 admittedly, it must be assumed that the <ORG>, dealing with <ORG> matters, held after full consideration that no substantial point of law arose in the case. The decree of the Court of the 16th February 1911 is, therefore, res judicata between the parties, and we cannot go into the merits of the case and say that this is a case where a stay of execution should be granted.

8. The parties are not properly before the <ORG> and I do not think they have any right to come before the <ORG>. Their only remedy is to go to <ORG> for special leave to appeal to His Majesty in Council. Until they do this, they have no footing whatever for further litigation in this matter.

9. There is no question of using our inherent powers to right a wrong or to prevent the abuse of the process of this Court. We are bound to hold that the decree of this Court of the 16th February 1911, which under the rules is obnoxious to appeal to <ORG>, is a good and just decree and one which ought to be executed.

10. That is the view I am prepared to hold, since, in my opinion, the applicants for special leave to <ORG> are not entitled to be heard to the contrary. They are barred by the principle of res judicata, and, speaking for myself, I am not prepared to hold that the decree of 16th February 1911 was not a good and just decree and was not final as far as this <ORG> is concerned. It is to my mind clear that it cannot be a proper use of the inherent powers of this <ORG> to impede the execution of the final decrees of this <ORG>, and I do not see why this <ORG> should not use its inherent powers to help the decree-holder who has obtained a good decree rather than help the judgment-debtor who has no locus standi to delay the course of justice.

11. I am strongly averse to staying execution, where the law does not expressly authorise it, except on very good grounds shown to the satisfaction of the <ORG>.

12. I have never been able to see why the interests of the decree-holder should not be just as worthy of consideration as those of the judgment-debtor, and I do not feel myself either called upon to interfere or justified in interfering with a perfectly competent, good and just proceeding in execution.

13. As the Rule is to be made absolute, I may say that the applicant to <ORG> has practically gained all he wanted, by this application, and I can see no objection to adjourning the matter to the 30th November, which is the practical effect of the order with the additional advantage to the decree-holder of the security ordered.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & ORS. DATE OF JUDGMENT: 14/08/1969 BENCH: <NAME>, A.N. BENCH: <NAME>, A.N. <NAME>, K.S. CITATION: 1970 AIR 522 1970 SCR (1) 894 1969 SCC (2) 634 ACT: Representation of the People Act , 1951, s. 123(3)(3A) & (4)-- Corrupt practice--Allegations against "personal character and conduct". HEADNOTE: The appellant challenged the election of the respondent on the ground that the respondent committed various corrupt practices including that of publication of false statements in relation to the personal character of the appellant. <ORG> held the allegations not proved. Dismissing the appeal, HELD: The provisions contained in sub-s. (4) of s. 123 are traveled when "any false allegation of fact pierces the politician and touches the person of the candidate". It is the personal character and conduct of the candidate which is to. be protected from malicious or false attacks. The words "personal character and conduct" are to be equated with mental or moral nature and the word "conduct" connotes a person's actions and behavior. The statement in question has to be first a false statement bearing on the personal character and conduct of the candidate. and secondly, the statement complained of must be one which is reasonably calculated to. prejudice the prospects of the election of the person. [903 H] T.K. Gangi Reddy v.<NAME>,  1 S.C.R. 175, reference to. The electorate at the time of the election has to be kept in the forefront in judging whether a publication can be said to offend the provisions relating to corrupt practices. The Court is to ascertain whether the statement is reasonably calculated to prejudice the prospects of the candidate's election. In reading the documents it would be unrealistic to ignore that when appeals are made by candidate there is an element of partisan feeling and there is extravagance of expression in attacking one another and it would be unreasonable to ignore the question as to what the effect of the pamphlet would be on the mind of the ordinary voter who reads the pamphlet. [905 <CITATION> ,  7 S..C.R. 790, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1573 of 1968.

Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated April 12, 1968 of <ORG> in Election Petition No. 19 of 1967.

The appellant appeared in person.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for respondent No. 1. The Judgment of the Court was delivered by <NAME>, J. This is an appeal against the judgment and order of <ORG> at Allahabad dated 12 April, 1968 dismissing the election petition filed by the appellant.

The appellant contested the General Election to <ORG> from Hapur <ORG>ary Constituency in the year 1967. There were seven rival candidates numbered respondents 1 to 7. The appellant contested the election on the ticket of <ORG>. He was then a sitting member of <ORG>. Among the rival candidates, <NAME> was an independent candidate. The election symbol of the appellant was elephant and the election symbol of <NAME> was lion. <NAME> secured 1,49,943 votes while the appellant secured 1,01,875 votes. The <NAME> candidate <NAME> secured 34,274 votes. The <ORG> candidate respondent Smt. <NAME> secured 33,988 votes. The appellant challenged the election on grounds of corrupt practices as mentioned in sub-sections (2), (3) and (4) of the Representation of the People Act , 1951 (hereinafter referred to as the Act). At the hearing of the appeal the appellant appeared in person after counsel on his behalf had obtained leave of this Court to withdraw and to allow the appellant to appear in person.

The various corrupt practices on which the appellant relied relate to occurrences at six places. The appellant did not press the other occurrences. The first occurrence relates to. a meeting held at the Town Hall Maidan at Hapur on 7 February, 1967. The appellant alleged that at the Hapur meeting respondent <NAME> and his supporters delivered inflammatory speeches against the appellant and thereafter the said respondent <NAME>'s supporters entered the office of <ORG>, to which the appellant belonged, assaulted the workers of the appellant, tore posters, abused the appellant and threatened his workers. In support of the allegations the appellant relied on Exhibit 28 the news report in the '<ORG>' published on 8 February, 1967 and also on Exhibit 23 the' news. report in the newspaper named '<ORG>' published on 8 February, 1967 and exhibit 22 being the editorial in <ORG> published on 7 February, 1967. The newspaper report in the '<ORG>' Exhibit 28 published on 8 February, 1967 contains the note of the correspondent from Hapur bearing the date 7 February, 1967 stating that a big meeting was held in support of respondent <NAME> Lok Sabha candidate from Hapur-Ghaziabad Constituency. In the '<ORG>' dated 8 February, 1967 Exhibit 23 it is stated that the supporters of <ORG> were raising slogans that they were championing the cause of Harijans and Muslim youths from <ORG> were brought for that purpose. It was also stated in the said newspaper that Muslim students of <ORG> were raising the slogans "Harijan Muslim are brothers and where from Hindu community has come. Black face be of Brahmin, barbar and lala. Throw shoes on Bhat, Gujar and Rajput". The appellant in paragraph 11 L15SupCI/69 -13 Of the petition further alleged that respondent <NAME> was associated with the '<ORG>' and <NAME>, Editor of <ORG> who was a colleague of respondent <NAME> wrote an editorial by way of an appeal to support the candidature of respondent <NAME> in that newspaper on 7 February, 1967 Exhibit 22 and the said appeal was also an instance of corrupt practice. The further allegations in the petition were that at the meeting which was held at the Town Hail Maidan at Hapur on 7 February, 1967 respondent <NAME> and the said <NAME>, Editor of <ORG> delivered inflammatory speeches.

The appellant generally impeached the judgment of <ORG> on two grounds. First, that there was no discussion of the entire evidence and, secondly, that there was rejection of the evidence on behalf of the appellant on consideration that the appellant's witnesses belonged to particular castes and sects.

The criticism on behalf of the appellant with regard to Hapur meeting was that respondent <NAME> in answer to the petition did not state that there was a meeting on 6 February, 1967 and thereby the appellant was denied the opportunity of meeting that case. The appellant relied on the decision of this Court in <NAME> & Company v.E. I. Trading(1) and the observations appearing at page 547 of the report in support of the contention that under the provisions of the Code of Civil Procedure 'and, in particular, the provisions contained in Order VIII of the Code, respondent <NAME> should have alleged in the pleadings that the meeting was held on 6 February, 1967 and in the absence of such allegations respondent <NAME> should not have been allowed to make that case. The decision of this Court is of no aid to the appellant. In the case of <NAME> & Company(1) the question was whether there was a contract between the parties and it was alleged by the plaintiff with reference to two letters that the letters would indicate some of the terms of the transaction. The defendant in the written statement did not specifically deny the said two letters. This Court observed that a mere denial of the contract was not sufficient and the rules of the Code enjoined denial of the existence of the letters. In the present case, the question was whether a meeting was held at Hapur Town Hail Maidan on 7 February, 1967. The respondent denied such a meeting. The respondent was not called upon to state as to whether there was a meeting on 6 February, 1967.

The news item in the newspaper '<ORG>' Exhibit 28 gave news from Hapur under the date 7 February, 1967 that a meeting was held at Hapur. Exhibit 23 was a news item in the newspaper '<ORG>' under the date 7 February, 1967 that <NAME>, Editor of <ORG> spoke at an election meeting 'at Hapur. Neither (1) [1964] 4 S.C.R. 19 :A.I.R. 1964 S.C. 539.

the <NAME> news item dated 7 February, 1967 nor the news item appearing under the date 7 February, 1967 Hapur published in the <ORG> on 8 February, 1967 contains any intrinsic evidence that a meeting was held at Hapur on 7 February, 1967.

Further, of the witnesses on behalf of the appellant <NAME> spoke of the meeting at the Hapur Town Hall Maidan on 7 February, 1967 and he also stated that three pamphlets were distributed and two issues of newspapers were also distributed, namely, <ORG> and <NAME>. No such pamphlet was produced. The two witnesses on behalf of respondent <NAME>, <NAME> and <NAME> said that a <ORG> election meeting was held at the Town Hall Maidan, Hapur and no election meeting was held in support of respondent <NAME> at the Town Hall Maidan, Hapur on 7 February, 1967.

With regard to the meeting at the Town Hail Maidan at Hapur 'alleged by the appellant to have been held on 7 February, 1967, the oral evidence on behalf of the appellant is that the meeting was held and the oral evidence on behalf of the respondent is that the meeting was not held. In the case of conflicting oral testimony it is safer to place reliance on documentary evidence. First, the newspaper report on which the appellant relies contained intrinsic evidence which totally nullifies the appellant's case. Exhibit 28 being the 'Hindustan' dated 8 February, 1967 indicates the news about Hapur under the date 7 February, 1967 that a meeting was held "yesterday night" meaning thereby 6 February, 1967, in support of respondent <NAME>. Secondly, the newspaper '<ORG>' published on 8 February, 1967 gave the news at Hapur under the date 7 February, 1967. The news referred to an election meeting at Hapur but did not mention that the meeting was held on 7 February or on 6 February., 1967. Thirdly, Exhibit A-12 which is an application by one <NAME> seeking permission from <ORG> for holding a meeting on 7 February, 1967 in the Town Hall Maidan, Hapur throws light on this aspect. The permission given by the authorities which is marked Exhibit A-13 required the persons holding the meeting to pay certain charges towards the use of the electricity. Exhibit A-14 is a receipt for payment of Rs.

5. These three documents indicate that the meeting which was held on 7 February, 1967 was a meeting organised by the supporters of <ORG>. Fourthly, Exhibit A-2 which is a General Diary of Thana Hapur bearing the date 7 February, 1967 shows that a constable was sent to the Town Hall Maidan to make arrangements in connection with the meeting which was to be 'addressed by one <NAME>. The witnesses on behalf of the respondent <NAME> mentioned the name of <NAME> and Smt. <NAME> as speakers on behalf of the <ORG> candidate. It is highly improbable that two meetings of the two rival candidates, namely of the <ORG> and of the respondent Prakash Vir <NAME> would both be held on the same date and at the same place. Fifthly, the reports which were lodged by the supporters of the appellant with regard to the attack on the office of <ORG> on 7 February, 1967 do not mention or refer at all to any meeting on behalf of respondent Prakash Vir <NAME> on 7 February, 1967 at the Town Hall Maidan, Hapur. It would be natural if a meeting had been held on 7 February, 1967 that there would have been reference to the same. The other allegations of the appellant were that respondent <NAME>'s supporters on 7 February, 1967 attacked the office of <ORG>, to which the appellant belonged. There was the First Information Report dated 7 February, 1967 about the attack on the office of <ORG>. This report is significantly silent about any meeting having been held on 7 February, 1967 at Hapur Town Hall Maidan. Though there was the alleged complaint about the attack on the office of <ORG>, it appears that there was no investigation. The attack on the party office was not proved by the appellant to have been made by respondent <NAME>'s workers and supporters. <ORG> correctly came to the conclusion that no meeting was held at Hapur on 7 February, 1967 and there was no attack on the office of <ORG>. With regard to. the 'attack on the office of <ORG> to which the appellant belonged though the first information report gave the news about the art, ok it is strange that there was no investigation. The report of the Joint Secretary of <ORG> to the President of <ORG> bearing the date 8 February, 1967 alleged that the supporters of Prakash Vir <NAME> attacked the office of <ORG> on 7 February, 1967, forcibly took necessary papers and a flag of the <ORG>. <NAME>, Joint Secretary of <ORG>, P.W. 71 in his evidence stated that none of the processions went to his office and further he hid himself in an adjoining room. He did not prove the truth of the statements contained in his report which was marked as Exhibit 11. The attack on the office of <ORG> was not mentioned at all either in the Vir Arjun of 8 February, 1967 or in the Hindustan dated 8 February, 1967. It is obvious that if in fact any attack had been made on the office of <ORG>, the supporters of the appellant would have taken steps for investigation and publication.

The second occurrence on which the appellant relied is. alleged to have happened at a place called Nagola. The appellant's case was that on 18 February, 1967, <NAME> and his supporters who were mostly Tyagi by caste asked the Tyagis to stop the Jatav voters from going to the polling station to cast their votes. It was alleged that Thawariya made the announcement by beat of drums that the Muslim, Chamar, Bhangi and Jatav voters would not be allowed to go to the polling station to cast their votes. The other part of the appellant's case about the Nagola incident was that there was an assault on <NAME>, a worker of the appellant. The appellant relied on the oral testimony of PW. 11, P.W. 12, P.W. 15, P.W. 16, P.W. 17, P.W. 19, P.W. 23, P.W. 65 and P.W. 80. The witnesses on behalf of the respondent were D.W. 4, D.W. 12, D.W. 13, D.W. 30 'and D.W.

33. The oral evidence is in support of the rival contentions, namely, that the Jatav voters would not be allowed to vote and the denial of the same by the respondent. The appellant also lied on Exhibit N that the Jatav voters would not be allowed to cast their votes by the Tyagis.

In support of the case with regard to assault on <NAME> the appellant relied on the oral evidence of <NAME> P.W. 11 and the injury report Exhibit 30 and other documents, namely, Exhibits 31, 32 and 35. The 'appellant criticised the judgment by contending that there was no discussion of the oral evidence of P.W. 17, <NAME>. P.W. 11, <NAME> said that he went to Nagola at about 3.30 p.m. on 19 February, 1967, the date of the election and the voters told him about the proclamation by beat of drums on the previous night and the voters further said that they would be insulted and they should remain there. <NAME> further said that he met <NAME> and <NAME> and 10 or 12 other persons were with them and they beat the witness with lathis and he received a number of injuries.

The other witnesses on whose testimony the appellant relied said that people wearing lion badges which was the election symbol of <NAME> asked the witnesses not to cast their votes and they also said that it was announced by beat of drums that no Chamar or Bhangi should cast a vote.

Nagola is a village within the circle of Badhnauli. <NAME>, D.W. 33 who was the Presiding Officer at Badhnauli polling station gave evidence. He said that the votes of village Nagola were polled and no Harijan or Mohammedan voter was stopped from casting votes and that there was no complaint that Harijan and Mohammedan voters were being stopped from casting their votes. In cross- examination the witness said that no voters from Haidernagar or Nagola were brought to the polling station under police protection.

P.W. 80, <NAME> who was posted as Station Officer <NAME> said that he received information from <NAME> that voters at Badhnauli were being stopped from casting their votes. <NAME> went to Badhnauli. He also went to Nagola. He said that 30 or 40 Harijan voters went to Badhnauli to cast their votes. He said that there was no voter who was taken by him to a polling station in a truck. <NAME> proved Exhibit 35 which was a contemporaneous report to the effect that no one was stopped from voting at Nagola.

<NAME> on whose testimony the appellant relied said that <NAME> came to Badhnauli polling station on 19 February, 1967 and there were 40 to 50 persons around him with lion badges on. His further evidence was that <NAME> asked the <NAME> to beat the voters to make them run away. <NAME> however denied having asked Sheoraj Singh <NAME> to drive away the voters.

<NAME>, P.W. 23 on whose evidence the appellant relied said that he beat the drum in Nagola village on 'a day before the polling. He said that there were two parties of the Tyagis. One was of <NAME> and the other was of <NAME>. The Jatavs, according to his testimony, were in <NAME>'s party and the <NAME> were in <NAME>'s party. The appellant said that <NAME> was disbelieved only because he belonged to the Chamar caste. That is misreading the judgment. <ORG> said that the evidence of <NAME> did not inspire confidence. That criticism of the evidence of <NAME> is justified because he came to support the case of the appellant and he belonged to the appellant's camp.

<NAME>, D.W. 12 said that no Harijan was stopped from casting his vote at Badhnauli polling station and no worker of <NAME> threatened any Harijan voter at the polling station. The appellant criticised the evidence of <NAME> that he did not know as to what was happening in the village. <NAME>, P.W. 17 mentioned the name of <NAME> as the leader of one of the parties and <NAME> as Pradhan of the village Nagola.

The oral evidence on behalf of the appellant is not acceptable for two reasons. First, if there had been any incident of a voter being prevented from voting 'a complaint would have been made to the polling officer of the polling station. Secondly, <NAME> and <NAME> who were the supporters of the appellant and who are alleged to have said that voters at Nagola were prevented from voting did not lodge any report about the alleged corrupt practice particularly when it was said to be committed by <NAME> himself.

<NAME>

The assault on <NAME> which was also said to be an incident of corrupt practice is unacceptable for these reasons. First the injury report Exhibit 30 has to be considered along with the statement of <NAME> being Annexure M and the report of the appellant being Exhibit 32 and the complaint of <NAME> being Annexure N being Exhibit 30. The appellant., in the report dated 17 February, 1967 Exhibit 32 spoke of voters not being allowed to exercise their votes. <NAME> in his complaint said that 10 or 12 persons beat him with lathis. All this happened on 19 February, 1967. The doctor's report was about the injuries. First it is peculiar that there was no complaint about the injuries after the injury report. Secondly, there is no evidence that the assault was by the workers of <NAME>. <NAME> in his evidence mentioned the names of <NAME> and <NAME>. These names were not mentioned in the complaint being Exhibit 30. In cross-examination <NAME> was asked 'as to how he had obtained the names and his answer was that he met the grass cutter who gave the names. It is curious that the grass cutter who gave the names was not examined.

The third incident on which the appellant relied took place at Chhajjupur. The allegations are that on 2 February, 1967 an election meeting was organised in support of the candidature of the appellant 'and the supporters of respondent <NAME> created disturbance with the result that the meeting could not be continued and the supporters of respondent <NAME> are alleged to have chased the appellant. <ORG> rightly commented on the absence of any report having been made by the appellant to <ORG>er or the police about the alleged occurrence. It is Obvious that if the appellant had been chased he would have made report to <ORG> or to the police. The appellant relied on the news item in the Patriot dated 5 February, 1967. The news item was referred to by <NAME>, P.W. 14 who, however, was not present at the meeting at Chhajjupur. He referred to a conversation with the Superintendent of Police. The Senior Superintendent of Police was not examined. No police report was produced. The truth of the newspaper report was not corroborated nor was the statement in the ,news item proved. On the contrary, <NAME> nullified the news item by admitting that he was not present at the meeting.

<NAME> spoke of the incident of 2 February, 1967 and mentioned about the shouting of slogans and throwing of brick-bats. <NAME> spoke of charge sheet under sections 147 , and 342 of the Indian Penal Code against certain persons. He spoke of the report of 3 February, 1967 and a report of 9 February, 1967. The report dated 3 February, 1967 relates to the occurrence on 2 February, 1967 at Chhajjupur. The report of 9 February, 1967 also relates to the alleged incident of 2 February, 1967 at Chhajjupur. The witness <NAME> admitted that no investigation was made. It is significant that the name of the appellant is not mentioned in either of complain,rs or reports. The allegations in the report are that some disturbances was created and names of various persons are mentioned as having tried to run towards. the jeep which carried the leaders of <ORG>. One of the witnesses <NAME>, P.W. 63 said that when the appellant rose to speak some people pelted stones at him.

The alleged incident at Chhajjupur is unacceptable because, first, there was no complaint by the appellant to the Election Commissioner, secondly, there was no police case and no investigation, thirdly, the reports did not mention the name of the appellant as having been assaulted or chased and fourthly, the news item in the <ORG> was not proved as to the truth of the contents therein. The ,fourth occurrence on which the appellant relied was at a place called Opehra. The appellant alleged that some persons were stopped from casting their votes. The appellant relied of the oral evidence of PWs. 58, 59 and 60. P.W. 60 is <NAME>, M.L.A. The other two witnesses were <NAME> and <NAME>. The appellant criticised the judgment that there was no mention of the name of <NAME>. The diaries being Exhibits A-23, A-32 and A-29 were produced to show that the election at Opehra polling station passed off peacefully and therefore no one stopped any voter from casting vote. <NAME> his oral evidence said that he saw people armed with lathis and ballams. He said that he made a complaint to the Presiding Officer and admitted in cross-examination that there was no written complaint. <NAME> did not prove that any person was stopped from voting.

The fifth and the sixth occurrences on which the appellant relied took place at Datiyana and Bankhanda. It is alleged by the appellant that at Datiyana the agents and the supporters of respondent <NAME> threatened the Scheduled Caste and Harijan voters and prevented them from going to the polling station. The allegations about the occurrence at Bankhanda are to similar effect. The appellant relied on Exhibit 18 which was a memorandum addressed by several voters who stated that they remained within the house and could not vote because the village <NAME> threatened to kill them if they would vote. <NAME> <NAME> spoke of the incidents at Nagola, Bankhanda and Hapur and his wife <NAME> Prakash <NAME> spoke of the alleged ;incident at Datiyana. The respondents witnesses denied that any person was prevented from casting vote at Datiyana.

The 'allegations with regard to the Bankhanda were referred to by <NAME> and other witnesses. The diary which produced with regard to the polling station disproved any such incident. The diaries are Exhibits A-19 and A-21. D.W. 20, <NAME> stated that he was at the polling station at Bankhanda and no one was stopped from exercising the right of franchise. D.Ws. 21 and 22 also spoke of polling at Bankhanda having been peaceful. The appellant referred to. religious songs which were said to be praise of respondent <NAME>. Mere praise-worthy songs will not be an instance, of corrupt practice. All the allegations about the voters having been stopped from casting their franchise followed the same pattern of oral evidence. The absence of any report either to <ORG> or to the <ORG> authorities is an important and noticeable feature and therefore the oral evidence is not acceptable.

The other allegations relied on by the appellant are that respondent <NAME> is guilty of corrupt practice under sub-sections (3), (3A) and (4) of section 123 of the said Act. The appellant contended that respondent <NAME> made communal propaganda against the appellant and also published false statements in relation to the personal character of the appellant. In aid of the contentions the appellant relied on annexures KK and MM. The appellant relied on the upper portion of annexure KK in support of the contention that the slogans amounted to communal propaganda. The lower portion of annexure KK was contended by the appellant to be allegations against the personal character of the appellant. Annexure MM was said by the appellant to contain slogans amounting to communal propaganda against the appellant. It was said by the appellant that respondent <NAME> promoted feelings of enmity or hatred against the appellant and further raised communal propaganda. The appellant also relied on Exhibit 22 being the editorial in <ORG> dated 7 February, 1967 in support of the contention that the editorial constituted communal propaganda against the appellant.

<CITATION> ,(1) this Court dealt with the scope and content of subsection (4) of section 123 of the Act. The Act is intended to protect freedom of speech on the one hand and to restrain malicious propaganda on the other. The provisions contained in subsection (4) of section 123 were said by this Court to be contra-

(1) [1939] 2 S.C,R. 766 vened when "any false allegation of fact pierces the politician and touches the person of the candidate". It is the personal character and conduct of the candidate which is to be protected from malicious or false attacks. The statement in question has to be first a false statement bearing. on the personal character and conduct of the candidate and secondly, the statement complained of must be one which is reasonably calculated to prejudice the prospects of the election of the person.

Under the provisions contained in sub-section (3A) of the said Act the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, face, caste, community, or language, is the mischief which is sought to be avoided by making the same a corrupt practice. The sub- section further says that such promotion or attempt to promote enmity or hatred is for the furtherance of the election of the candidate or for prejudicially affecting the election of any candidate.

Th.e words "personal character or conduct" were explained by this Court in <NAME> v. <NAME> and others(1) "to be equated with his mental or moral nature. Conduct connotes at person's actions o.r behaviour". Annexure KK was not proved and therefore it cannot be said to constitute any communal propaganda. Assuming it were proved there is no appeal to vote for a person on the ground of religion nor is there any appeal not to vote for a person on the ground of his religion. Further, the provisions contained in sub-section (4) of section 123 require the publication with the consent of the candidate or his election agent. In the present case, annexure KK has not been established to be published with the consent of the respondent <NAME> or his election agent. It, therefore, follows that annexure KK offends neither the provisions contained in sub-section (3A) nor in sub-section (4) of section 123 of the Act. Annexure MM was said by the appellant to be a communal propaganda. Arnexure MM was not proved. Even if it were proved the slogans do not offend the provisions of either subsection (3A) or sub-section (4) of section 123 of the Act.

The publication in the newspaper 'Vir Arjun' Exhibit 22 is to the effect that differences between Hindus and Harijans were being spread by the supporters of the Republican candidate meaning thereby the appellant and if students from <ORG> were brought in by them then students from Ghaziabad would be brought into the field. The newspaper certainty (1) [1965] 1 S.C.R. 175 Was inclined in favour of respondent <NAME> but the newspaper publication said that <NAME> would not unlike the <ORG> candidate preach communal hatred. The statements in Exhibit 22 do not make any reflection on the moral or mental nature of the appellant and they do not touch the personal character of the appellant, nor do they promote enmity or hatred on grounds of religion.

The appellant failed to prove that respondent <NAME> committed any corrupt practice in relation to the personal character and conduct of the appellant. The newspaper publication Exhibit 22 was an appeal on behalf of respondent <NAME>. As long as the publication is not tainted by corrupt practice, such an appeal will not be an infraction of the provisions as to corrupt practices as contemplated in the Representation of the People Act . Suggestions that attempts are made to accentuate the differences between the Hindus and Harijans in the article cannot be extracted in isolation from the entire context. The electorate at the time of the election has to be kept in the forefront in judging whether the article can be said to offend the provisions relating to corrupt practices. The Court is to ascertain whether the statement is reasonably calculated to prejudice the prospects of the candidate's election. This Court observed in <CITATION> (1) that in reading the documents it would be unrealistic to ignore that When appeals are made by candidate there is an element of 'partisan feeling and there is 'extravagance of expression attacking one another and "it would be unreasonable to. ignore the question as to what the effect of the pamphlet would be on the mind of the ordinary voter who reads the pamphlet". In the light of these principles, we are of opinion that there is no infraction of the provisions contained in sub-sections (3A) and (4) of section 123 of the Act.

For the reasons mentioned above, this appeal fails and is dismissed with costs.

<ORG> Appeal dismissed


JUDGMENT <NAME>, Kt., C.J.

1. This is an appeal from an order made under Section 32, Act X of 1877. Appellant sued the first defendant upon a bond executed in his favour. The first defendant pleaded in substance that appellant and his uncle, the respondent, formed a joint Hindu family, that the bond was taken on behalf of the joint family, and that he had made a part-payment to the respondent. The respondent, supporting the statement made by the first defendant, sought to intervene. He had also brought suit upon the same bond against the first defendant. Appellant resisted the respondent's application to be made a defendant, on the ground that the money 'secured by the bond was his own. The Subordinate Judge of <NAME> added the respondent as a defendant,, and it is argued in appeal that this is not a case within the scope of Section 32,. and reliance is placed on Norris v. <NAME> L.R. 2 C.P.D. 80, <NAME> v. <ORG> L.R. 2 Ex. D. 365, Ex parte Smith (L.R. 2 Ch D. 51), <NAME> v. <NAME> 45 L.J. (C.P.) 419, <NAME> v. <NAME> 7 W.R. 202, <NAME> v. <NAME> 10 W.R. 360, and <NAME> v. <NAME> 25 W.R. 17.

2. The decision of the objection to the order of the <ORG> below turns on the meaning of the words in Section 32 of the Code of Civil Procedure "whose presence before the <ORG> may be necessary to enable the <ORG> effectually and completely to adjudicate upon and settle all the questions involved in the suit."

3. Is it meant by these words ' that a person not originally impleaded is to be made a party only if the questions raised in the suit cannot otherwise be completely and effectually determined between the parties to the suit? or is it meant completely and effectually determined so that they shall not be again raised in that or in any other suit between the parties to the suit or any of them and third parties? To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, ' between the parties to the suit," and there can be few, if any, questions which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will, as between the parties to the suit, not be final. On the other hand, the interpretation warranted by the terms would enable the <ORG> to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them. No better instance of the wisdom of such a rule could be afforded than is presented by the" suit before the <ORG>. If the respondent be not made a party and the appellant succeeds, the first defendant is liable to be called upon to pay the debt twice over, viz., in this suit, as a debt due to the appellant personally, and, in Original Suit 60 of 1880, as a debt due to the coparceners, and he will lose in this suit the benefit of the part-payment, it is alleged, he has made, while in the other suit he may establish he is entitled to it. Reading the whole of the rules under Order XVI of the Judicature Act together, it seems clear that Rule 13 should be interpreted in the larger sense. Although Ex-parte Smith L.R. 2 Ch. D. 51 and <NAME> v. Hartley L.R. 1 Q.B.D. 656 were decided on Rules 17,18, they indicate the principle, we believe, the framers of the rules had in view, namely, that a material question common to the parties and to third parties should be tried once for all. To secure this result the <ORG> has a discretion to add parties which it should exercise, unless by the addition of new parties either of the parties already on the record would be prejudiced or hindered of their remedies.

4. The appeal is dismissed with costs.