ORDER <NAME>, J.

1. These two appeals raise a question as to the true scope and interpretation of Section 110 of the Motor Vehicles Act. The learned single Judge (<NAME>) who has formulated and referred three questions for our opinion, felt that the <ORG> decision of this Court in the case of <CITATION> , reported in AIR 1982 All 310, has, while interpreting Section 110 and allied provisions of the Motor Vehicles Act , stated the law on the subject too widely and consequently it requires reconsideration. The reference was necessitated because of a preliminary objection raised by the learned counsel for <ORG> before the learned single Judge. The objection was that the claims giving rise to the two suits out of which these first appeals arise were exclusively cognizable by <ORG> and not by the Civil court. After an elaborate consideration of the various authorities cited before the learned single Judge he has posed three questions and referred them for our opinion. The questions are-

"(1) What is the extent and import of the expression 'claim for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' occurring in Section 110(1) of the Motor Vehicles Act, 1939?.

(2) Whether in an accident involving a motor vehicle, merely for the reason of being involved in the accident, a claim for compensation will lie before <ORG> 'constituted under Section 110 of the Motor Vehicles Act, 1939?.

(3) What, if any, is the effect of the provisions of Section 110-B of the Act in such cases on the jurisdiction of <ORG>?".

2. In <NAME> case (supra) a Division Bench of this Court had occasion to consider the question whether a Motor Acci-

dents Claims Tribunal constituted under the aforesaid Act is competent to take cognizance of a claim for compensation in respect of an accident involving death or bodily injury to persons arising out of the use of a motor vehicle against a third party also i.e. a party other than the owner or driver of the vehicle and the insurer of the vehicle. <ORG> was considering a composite claim directed against both the driver and the owner of a tempo-taxi which had collided with the Allahabad-Saharanpur Passenger as well as the Union of India represented by the General Manager, <ORG>. Upon a schematic analysis of Sections 110 to 110-F , the Bench held that all claims in respect of accidents arising out of the use of motor vehicle must be held to be cognizable by <ORG> and not by <ORG>, the <ORG> having provided an exhaustive machinery and the procedure to be followed thereunder for adjudicating upon all claims in respect of accidents arising out of the use of motor vehicles. We shall revert to this case later when considering the specific questions referred for our opinion. We will take up the first and the second questions together as a glance at the second question, in our opinion, would indicate that it is fully covered by the first question. Upon a true interpretation and import of Section 110(1) will depend the answer to the second question formulated by the learned single Judge as well.

3. In order to appreciate the scope of Section 110 it will be necessary to examine the nature of claim triable under Section 110 of the Act. <CITATION> , reported in AIR 1977 SC 1248, their Lordships had decision to consider an identical issue. The main contention urged before <ORG> was that negligence in the use of the motor vehicle causing the accident giving rise to the claim for compensation need not be proved under Section 110 of the Motor Vehicles Act. The argument further was that Chapter VIII of the Act (containing Section 110 etc.) was a consolidating Act relating to motor vehicles and their use on a public place and, as such, it contains the entire law procedural as well as substantive. That being so, it was argued, the common law or the Law of Torts was not applicable. It was sufficient, therefore, to establish that the accident arose out of the mere use of the motor vehicle irrespective of whether the use of the motor vehicle was negligent or otherwise.

4. The contention was rejected by their Lordships in the following words:

"26. This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The owners' liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. <ORG> is a tribunal constituted by <ORG> for expeditious disposal of the motor claims. The general law applicable is only common law and jhe law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the <ORG> is authorised to determine the amount of compensation which appears to be just. The plea that the Claims <ORG> is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results.

27, " Section 110(1) of the Act empowers <ORG> to constitute one or more <ORG> for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to personal The power is optional and <ORG> may not constitute a Claims Tribunal for certain areas When a claim includes a claim for compensation the claimant has an option to make his claim before, <ORG>. Regarding claims for compensation, therefore, in certain cases Civil Courts also have a jurisdiction If the contention put forward is accepted so far as <ORG> is concerned it would have to determine the liability of the owner on the basis of common law or torts while <ORG> can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance"

Finally, their Lordships summed up the law thus in paragraph 36 of the judgment:

"We conclude by stating that the view of the learned Judges of <ORG> has no support in law and hold that proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case,"

5. The above decision, in our considered view, provides a complete answer to the first and second questions formulated by the learned single Judge. According to our reading of the decision of <ORG> cited above, a claim for compensation would be triable under S. 110 of the- Motor Vehicles Act only if it is in respect of accident involving the death of or bodily injury to persons caused by such use of the motor vehicle as may give rise to a tortious liability, such as, rash or negligent driving. As a corollary it necessarily follows that <ORG> would not get jurisdiction to entertain a claim for compensation merely because the motor vehicle happened to be involved in the accident. The crucial words are "claim for compensation in respect of accidents...... arising out of the use of motor vehicles." In the context of the nature of the liability sought to be covered by S. 110, the words 'accident....arising out of the use of motor vehicles' must mean that the use of the motor vehicle caused the accident giving rise to the claim for compensation.

6. Section 110 of the Act and the crucial words quoted above were also the subject of consideration by a Full Bench of <ORG> in the case of <CITATION> , reported in AIR 1986 Punj and Har 239. The majority opinion was delivered by <NAME>, J. Speaking for the majority <NAME> J. observed thus in paragraph 31 of the judgment-

"The answer to the problem, therefore, entirely depends on the interpretation of Section 110 under which <ORG> are set up and conferred with the jurisdiction to deal with the claims for com pensation. According to this provision, <ORG> is set up to adjudicate upon claim for compensation in respect of the accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. So, the <ORG> has not been conferred with the jurisdiction to deal with the claims of com pensation in respect of all kinds of accidents.

Instead, its jurisdiction is confined to claims of compensation in respect of those accidents which arise out of the use of motor vehicles. In other words, the use of motor vehicle must be the cause of the accident howsoever slight it may be and unless the accident is the effect caused be the use of the motor vehicle it would not be possible to say that it has arisen out of the use of motor vehicle. The interpretation of similar words came, up for consideration before <ORG> of <ORG> in <ORG> v. <NAME> and <ORG>, 1967 Acc CJ 329. The Words used in the insurance policy were 'injury caused by or arising out of the use of the vehicle', <ORG> while agreeing with the judgment written by <NAME>, C J. observ ed:--

"The words, 'injury caused by or arising out of the use of the vehicle' postulate a casual relationship between the use of the vehicle and the injury'. Caused by connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely causal concomitant not considered to be, in a relevant casual sense, a contributing factor."

7. With respect we entirely agree that the jurisdiction to claims for compensation under S. 110 would arise only where the allegation is that the use of motor vehicle was the cause of the accident, that is, the accident was caused by the use of the motor vehicle. It may, however, be mentioned that the Full Bench of Punjab and Haryana High Court was con-

cerned with a claim which was directed solely against the railway authorities alleging that the accident took place entirely because of their carelessness and negligence and that of the driver of the train and the gateman. The Full Bench specifically noticed that in the claim petition before them there was no allegation that the motor vehicle in any way contributed to the cause of the accident. Their Lordships of <ORG> also noticed the decision of this Court in the case of <NAME> (AIR 1982 All 310) (supra) but dis tinguished it on the ground that that was an instance of a composite claim which was directed against both the owner and the driver of the motor vehicle as well as its insurer on the one hand and the railways on the other.

That is why, the majority opinion emphasized that, in the claim petition before them there was no allegation that the motor vehicle in question had contributed in any way, to the cause of the accident. Their Lordships, there-

fore, held that the claim could not thus be said to be in respect of an accident arising out of the use of the motor vehicle. 'His Lordship <NAME>, <NAME> delivering the minority opinion;

also expressed total agreement with the deci-

sion of this <ORG> in <NAME> case, The majority, however; did not dissent from the view expressed in <NAME> case but distinguished it on the ground mentioned above.

8. Another decision which must be noticed in view of the fact that the law on the subject has been dealt with and expounded exhaustively dealing with almost every aspect of the question arising for our consideration. The decision is reported in AIR 1988 Guj 13 ( <CITATION> ). His Lordship <NAME>, J. delivering the judgment of the Court analysed the entire scheme of the Act pertaining to compulsory insurance of motor vehicles as well as adjudication of claims in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. His Lordship also noticed almost all the decisions on the subject, namely, the scope and interpretation of Section 110 rendered by <ORG> as well as the various <ORG>. The learned Judge summed up the law thus at pages 18 and 19:

"It is, therefore, obvious that the phraseology employed by the legislature in Section 110(1) laying down functions to be performed by <ORG> for adjudicating upon the claims for compensation in respect of accidents involving injuries to persons arising out of use of motor vehicles must necessarily be treated to mean that <ORG> will be entitled to adjudicate upon the claims for compensation in respect of accidents arising out of negligent use of the motor vehicles and not any innocuous use or in other wards, it should be misuse of the motor vehicle or rash and negligent use of the motor vehicle which must have contributed to or must have caused the accident in question. Claims for compensation arising out of only such, accidents can be entertained by <ORG> under Section 110(1) ."

The Bench went on to consider also a contingency where the accident may have been causal not only by the negligent or careless use of the motor vehicle by the driver but also by some external agency. The Bench answered, the question; thus at page 19:

"The question arises, as to whether the claimant before <ORG> properly moved by him for adjudication of the claim for compensation, on account of the accident caused by the negligent use of the motor vehicle can urge that the accident in question was caused not only by rash and negligent use of the motor vehicle, but also by some outside agency which contributed its mite and was also partly responsible for the causing of the accident, or, in other words, can claimant legitimately urge that there was, in addition to the motor vehicle driver who was a tortfeasor, another joint tortfeasor being some other person who might not have used any motor vehicle but nonetheless who might have contributed to the causing of the accident? As it is well settled that <ORG> has to adjudicate upon claims on the basis of the tortious liability of the tortfeasor brought before it, of necessity, such disputed claims can encompass to the adjudication of claims even against all joint tortfeasors contributing to the accident in question as they would also remain in the domain of tortious liability. It is also well settled that once it is decided that the accident in question has been caused by joint tortfeasor, two or more, each one of them would remain jointly and severally liable to meet the claim of the claimant. All these questions, therefore, can legitimately fall within the scope and ambit of the jurisdiction of <ORG> under Section 110(1) the moment it is shown that the accident in question, if not wholly, at least in part, is caused by negligent use of the motor vehicle. We do not find anything in the language of Section 110(1) or any other provision of the succeeding sections to contra-indicate the legislative intention underlying conferment of exclusive jurisdiction of <ORG> for adjudication of claims for compensation in such cases. It is also interesting to note that Section 110-A which provides for procedure for applying for compensation before the <ORG> nowhere indicates as to against whom such application can be filed: As the claims before the <ORG> have to be based, on tortious liability, as seen above, it necessarily follows that application can be filed against either sole tortfeasor viz. the driver of the offending motor vehicle causing the accident or against one or more of joint tortfeasors who are involved in the accident. Some of the joint tortfeasors might be agencies not utilising any motor vehicle in contributing to such accident. Consequently, claim petition can legitimately be filed not only against the driver, owner and insurer of the offending motor vehicles which has been rashly and negligently used at the relevant time for causing the accident but can also be Filed against joint torlfeasors who might have contributed to the accident along with the driver of the motor vehicle and who by themselves may not have utilised any motor vehicle while so contributing to the accident"

9. With respect we entirely endorse the opinion expressed by the learned Judges of <ORG> with regard to the scope of Section 110 as well as a composite claim for compensation based on the allegation that the death or bodily injury occurred in an accident which was caused not only by the use of the motor vehicle but some outside agency. In such cases, all the tortfeasors who may have contributed to or caused the accident may be legitimately brought before the <ORG> by means of a claim petition under Section 110 provided, of course, one of the factors contributing to the accident is the use of a motor vehicle. After a very learned and exhaustive exposition of the law on the subject, <ORG> divided the category of cases which can give rise to claims for compensation in respect of accidents involving, the: use of the motor vehicle ,as follows:

"25. Let us now fake stock of the situation. On the aforesaid discussion Of the relevant provisions of the Act and Various decisions of the High Courts, it, appears clear to us that following Four types of cases can give rise to claims for compensation;--

I. Claims for compensation in cases where it is alleged that motor vehicle driver was solely responsible for pausing accidental injuries giving rise to the claims for compensation.

II. Claims for compensation in cases, of accidents where it is alleged that accident is caused not on account of rash or negligent driving of driver of the motor vehicle but is solely caused on account of rashness or negligence of any outside agency who might have rashly or negligently used any vehicle other than the motor vehicle causing the accidental injuries or who might have been solely responsible for the accident even otherwise.

III. Claims for compensation in case where it is alleged that the accident giving rise to the claim is being the result of composite negligence not only of the driver of the motor vehicle but also of outside agency or driver of another vehicle which may not be motor vehicle but who might be found negligent contributing to the causing of the accident, meaning thereby, claims for compensation against joint tortfeasors, one of which at least is the driver of a motor vehicle.

IV. Cases where it is alleged that accidental injuries have been caused on account of composite negligence of driver of the motor vehicle as well as any other person who might be jointly responsible for causing the accident. But when ultimately, on evidence, it is found by the <ORG> that driver of the motor vehicle was not at all responsible, not even to the slightest extent and that sole responsibility for causing of the accident rested on the shoulders of the driver of the vehicle which is not a motor vehicle or on the shoulders of any other agency."

10. The Bench held that so far as the first type of cases is concerned it is <ORG> which alone can entertain the claim under Section 110(1) of the Act and adjudicate upon it and if it was found that the motor vehicle driver was negligent, appropriate compensation can be awarded against the driver, owner and insurer of the vehicle as the case may be.

11. In regard to the second type of cases, the Bench held that the <ORG> shall have no jurisdiction to entertain the same because the claim does not allege that the accident was caused by the negligence in the use of motor vehicle.

12. So far as the third type of cases is concerned the learned Judges ruled that such a composite claim would be triable by <ORG> on the principle that apart from the fact that the accident was caused by the negligent use of the motor vehicle, the outside agency (other than the motor vehicle) had also contributed to the accident in such cases inter se liability can be adjudicated by the <ORG> fixing just compensation and making it payable by the joint tort-feasors, jointly or severally. Their Lordships held that thereby future litigation as regards the extent of the liability of joint-feasors can be avoided.

13. In respect of the last category of cases, the Bench held that where the accident is alleged to have been caused on account of composite negligence of the driver of the vehicle or any other vehicle or outside agency, claim for compensation would be maintain able by <ORG> but if after hearing the parties the <ORG> comes to the conclusion that the accident was caused not on account of the rash and negligent use of the motor vehicle but solely on account of negligence or rashness of some outside agency like railway engine, carts, etc. the case would go out of the purview of S. 110(1) and the <ORG> may thereupon reject the claim petition on the ground of lack of jurisdiction to award compenstaion.

14. Having given the matter our careful consideration we agree with the conclusion reached by <ORG> as to the circumstances in which <ORG> shall have jurisdiction to entertain petitions filed under S.110 as well as the cases in which it shall have no jurisdiction to entertain the petition at the very threshold or subsequently on a finding that the accident was riot caused by the use of the motor vehicle but solely, by some outside agency.

15. The upshot of the above discussion, therefore, is that <ORG> shall have jurisdiction to entertain all claims for compensation in respect of accidents involving the death of, or bodily injuries to persons where the accident is caused by the use of the motor vehicle or the use of the motor vehicle contributes, whether by itself or along with some other joint tort-feasors, to the accident. As a corollary, this <ORG> holds that the mere fact that the motor vehicle was involved in the accident by itself, and without more would not confer on the <ORG> jurisdiction to entertain a claim. We further hold that where the claim for compensation alleges that the accident was caused by the negligence of the driver of the motor vehicle as well as by some outside agency, then too the <ORG> shall have jurisdiction to entertain the petition provided that if the <ORG> ultimately finds that the accident was caused wholly by the outside agency and not by the driver of the motor vehicle it will cease to have any jurisdiction to grant any relief to the claimant. We also hold that where the claim petition is directed solely against outside agencies, i.e., Other than the driver, owner or the insurer of the vehicle and the allegation is, as was the case before <ORG> of the Punjab and Haryana High <ORG> (AIR 1986 Punj and Har 239) (supra), that the accident was caused entirely by the negligence of that outside agency, the <ORG> shall have no jurisdiction even to entertain the petition at the very threshold. The first and the second questions are answered accordingly.

16. While we are on the first and second questions we may also comment on the decision of this Court in the case of <NAME> (AIR 1982 Allahabad 310) (supra) with regard to the correctness of which the learned single Judge referring these questions had some doubt. That was a case of a composite claim. It was directed against both the owner of the motor vehicle a's well as the <ORG> represented by the General Manager, <ORG>. The law enun-ciated in that decision will, therefore, have to be viewed in the light of the facts of that case. The majority opinion expressed by <ORG> in <ORG> specially commented on this aspect of the case and stressed that in <NAME>'s case the claim petition being directed against the owner of the motor vehicle as well as the <ORG> clearly implied that negligence was alleged against both the driver of the motor vehicle as well as the railway auth orities.

17. With respect, the Punjab and Har-

<ORG> correctly read the implication of the decision in <NAME> case which was plainly an instance of a composite claim. However, in order to remove any doubt, we qualify the statement of law contained in <NAME> case by holding that where the accident is not alleged to have resulted from or been caused by the negligent or careless use of the motor vehicle, the. <ORG> shall have no jurisdiction even to entertain the petition. As observed above, mere involvement of the motor vehicle j in the accident would not be enough to confer jurisdiction on <ORG>.

18. That brings us to the third question which is concerned with the effect of the provisions of Section 110-B of the Act as regards the scope of the jurisdiction of <ORG> under Section 110 . On a consideration of certain decisions cited before him, the learned single Judge was of the opinion that <ORG> can entertain claims which are directed only against the driver, owner and insurer of the vehicle and not against a third party. This view of the learned single Judge as well as of the decisions of the other <ORG> on which he placed reliance was based on interpretation of Section 110-B of the Act. In <NAME> case (AIR 1982 Allahabad 310) this Court had occasion to consider the impact of Section 110-B on the question whether <ORG> can entertain claims directed against third parties as well, in depth. The Bench referred to the scheme of the Act as reflected by Section 110 to Section 110-F and after quoting the provisions of Section 110-B , observed thus in paragraphs 12 to 17 of the Judgment:

"12. We are clearly of the opinion, upon an examination of the aforesaid statutory provisions and the scheme of the enactment as projected by these provisions, that <ORG> constituted under the Act is empowered to adjudicate upon all claims for Compensation in respect of accident involving, the death or the bodily injury to persons, where the accident arises out of the use of a motor vehicle and, that in awarding compensation in respect of such an accident <ORG> is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words 'in respect of accidents.....arising out of the use of the motor vehicle.....' occurring in Section 110(1) are words of the widest possible amplitude. We see no reason either on the plain language of Section 110 or in any other allied provisions or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties in the present case, the <ORG>.

13. As mentioned above, the Motor Vehicles Act is a comprehensive Code. <ORG> have been constituted, in our opinion, to entertain all claims in respect of accidents arising out of the use of motor vehicle. It cannot be disputed that where the death or bodily injury is caused to the claimant in an accident arising out of the use of motor vehicle and as a result of the negligence of the owner or the driver of the motor vehicle as well as of a third party, the claim so far as the owner or insurer or the driver of the motor vehicle are concerned would lie before <ORG> under the Act in terms of Section 110 . <ORG> will indisputably have no jurisdiction to entertain the claim against the insurer or owner or driver in view of the express bar imposed by Section 110-F .

14. If, therefore, we were to accept the submission of the applicant it must follow as a necessary corollary that in regard to the same accident as against the third party, the claim would lie elsewhere, namely, <ORG>. In that event it would not be difficult to see that two conflicting decisions are likely to come into existence. The <ORG> may hold the driver of the motor vehicle wholly at fault and responsible for the accident and on that ground award compensation against the owner of the motor vehicle or the driver or the insurer. <ORG> may, on the other hand, seized of the case against the third party in respect of some accident, may come to an exactly opposite conclusion and hold some one else responsible for the accident and bodily injuries to the claimant.

15. Such a result cannot have been in tended by the legislature. On the plain langu age of Section 110 , therefore, we have no hesitation in coming to the conclusion that the claims in question were maintainable against the <ORG>. In our opinion a com plete adjudication of all the claims for com pensation in respect of an accident arising out of the use of the motor vehicle was intended to be provided for under the Act and conse quently unless all the parties involved in the accident are arrayed as opposite parties be fore the same forum and are heard, on the question of negligence, the matter cannot be properly and effectively disposed of. For, otherwise, if the claimant is compelled to institute his claim before the <ORG> only against the owner and driver of the vehicle and insurer and is left to sue the remaining persons responsible for the accident the ad judication cannot be against to be complete and final.

Under the circumstances, the only reasonable interpretation which has appealed to us is that suggested by the learned counsel for the claimants, namely, that the claims were maintainable, against <ORG> also.

16. We may now turn to Section 110-B to see whether there is anything therein which might be construed as restricting the ambit of Section 110 . The first part of Section 110-B has been expressed in general terms. It provides that <ORG> shall after giving the parties an opportunity of being heard hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid, In the first part, which is the substantive part, there is no indication that the <ORG> cannot award any compensation against persons other than the insurer or the owner or the driver of the motor vehicle. Stress was, however, laid on the second part of S. 110-B which provides that in making the award <ORG> shall specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle in question. It was submitted that this limits the power of <ORG> only to these three classes of persons.

17. We are unable to accept the above contention. The second part of Section 110 comes into operation and is attracted only because it is necessary to apportion the liability between the insurer or the owner in accordance with the relevant provisions of the Act specifying the limits of liability of the insurer. It does not, in our opinion, in any way curtail or restrict the power of <ORG> to ward compensation against a third party who may be found to have contributed to the accident involving the death or bodily injuries to persons arising out of the use of the motor vehicle. In our opinion, the second part of Section 110-B enjoins the <ORG> to apportion the liability between the insurer and the owner of the vehicle, where the <ORG> holds the owner or the driver responsible for the injury caused to the claimant."

19. We entirely approve of the above interpretation of Section 110-B and are clearly of the opinion that <ORG> is not confined in its jurisdiction to claims for compensation which are directed only against the driver, owner and insurer of the vehicle. Where the claim is founded on the assertion that the accident was caused by, apart from the use of the motor vehicle, some third party, the <ORG> shall undoubtedly have' jurisdiction to entertain the claim even though it is directed against a third party. In our opinion, what gives jurisdiction to the <ORG> is, that the claim must be in respect of accidents involving the death of or bodily injury to, persons caused or contributed by the use of motor vehicle whether wholly or conjointly, with some third party. As observed in <NAME> case (AIR 1982 Allahabad 310), the legislative intent behind the latter part of Section 110-B was to cast a duty on the <ORG> to specify the amount of compensa-tion and apportion it between the insurer, or the owner or the driver of the vehicle in question.

20. The interpretation which we are in-

clined to accept is fully supported by the <ORG> decision of <ORG> in <NAME> case (AIR 1986 Punj and Har 239) (supra), <NAME>, J. after referring to all the decisions taking a contrary view as to the interpretation of Section 110-B and its effect on the scope of Section 110 stated the law vide paragraph 30 of the judgment thus:

"30. In all the abovenoted cases in which the view has been taken that a claim petition against the persons other than the owner, driver and the insurer is not maintainable before the <ORG> under the Act, reliance has been placed on that part of Section 110-B which provides that in making the award the Claims <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. This provision, in my view, in no way indicates either that the jurisdiction of the Claims <ORG> is confined to give award against the insurer, or owner or driver or curtails the jurisdiction conferred on the <ORG> under the earlier portion of the section which authorises him to determine the amount of compensation to be payable to the claimants or any one of them. The latter portion of this section requires specification of the liability amongst the insurer or owner or driver because it has relevancy only amongst' them. On the question of appor-tionment if the liability is found to be composite of the Owner, driver or insurer of the vehicle on the one hand and some other party on the other, the question of apportionment between the two set of parties would not arise. Similarly, if the liability to pay compensation is entirely fixed on a party other than the owner, driver or the insurer of the motor vehicle, again the question of apportionment would not arise. It is for this reason that the apportionment clause is confined to the insurer or owner or driver of the vehicle and the other persons are not named in that provision and not because the intention was to limit jurisdiction of the <ORG> to award compensation against the said three persons only."

21. <NAME>, J. (as he then was) who delivered the minority opinion, also approved the interpretation placed by this Court in <NAME> case on the scope and effect of Section 110-B of the Act. There was thus complete unanimity among the three learned Judges constituting <ORG> in <NAME> case as to the impact of Section 110-B on the question whether <ORG> is competent to entertain a claim for compensation which is directed not only against the owner, driver and the insurer of the vehicle but also third parties. The Full Bench of Punjab and Haryana <ORG> disapproved of the decisions of the Himachal Pradesh <ORG> in <CITATION> , AIR 1982 Him Pra 11, <CITATION> , AIR 1982 Delhi 282. Swarnalata v <ORG>, AIR 1974 Gauhati 31, <CITATION> , AIR 1975 Andh Pra 222 in so far as the purpose and scope of Section 110-B is concerned. The reasons why <ORG> was "not inclined to accept the construction put by these <ORG>s on Section 110-B have already been quoted above.

22. With respect we entirely agree with the decision of <ORG> as to the effect of Section 110-B on the power of <ORG> to entertain petitions for compensation which are directed against third parties in addition to the driver, owner and the insurer of the vehicle. It may be recalled that in the case before <ORG> the claim petition was directed solely against the <ORG> and there was no allegation that the use of the motor vehicle had, in any way, contributed to the cause of the accident. It was for this season that-the majority held that the claim petition in question was not entertainable by the <ORG>.

23. In addition to the reasons which were given by this Court in <NAME> case (AIR 1982 Allahabad 310) and approved by us as well as those rendered by <ORG> of Punjab and Haryana High Court (AIR 1986 Punj and Har 239) as well as <ORG> (AIR 1988 Gujarat 13)(supra) we may also refer to Section 110-E of the Act which also supports the view we are inclined to take, namely, that the <ORG> is not confined in its jurisdiction to entertain claim petitions against the driver, owner and the insurer of the vehicle.

Section 110-E provides:

"110-E. Recovery of money from insurer, as arrear of land revenue-

Where any money is due from any person under an award, <ORG> may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue."

24. The words 'any person' in the above provision clearly indicate the legislative scheme which suggests that compensation may also be awarded against persons other than driver, owner or the insurer of the vehicle.

25. The learned Judge referring the questions was influenced by three decisions, viz. <CITATION> , AIR 1982 Him Pra 11, <CITATION> , AIR 1975 Andh Pra 222 and <CITATION> , AIR 1987 Madras 80. The first two of these decisions have already been commented upon by <ORG> of the Punjab and Haryana <ORG> and as we are in agreement with the view expressed by that Full Bench, it is unnecessary to repeat the reasons which have persuaded us to hold that Section 110-B does not have the effect, of whittling down the scope of Section 110 so as to be confined to the claims directed only against the driver, owner and the insurer of the vehicle. As regards the decision; of <ORG> cited above, with great respect, we do not agree with its interpretration of Section 110-B . We have already elaborated our reasons for taking the contrary view. Further the construction which We are inclined to place on the effect of Section 110-B on the scope and jurisdiction of <ORG> under Section 110(1) to entertain claim petitions against third parties as well finds full support from the opinion expressed by <ORG> of the Punjab and Haryana <ORG>. With respect, we prefer the opinion expressed by <ORG> Punjab and Haryana <ORG> to the interpretation sought to be placed on Section 110-B by <ORG>.

26. Our answer to the third question, therefore, is that Section 110-B does not have the effect of whittling down the width and ambit of the jurisdiction of <ORG> under S. 110(1) so as to confine it to claims directed only against the driver, owner and the insurer of the vehicle the use of which caused the accident and that <ORG> can entertain petitions for compensation also against third parties in addition to these three persons.

27. The answers to the first and second questions have already been given in the earlier part of our opinion,

28. As the learned single Judge has referred only three questions to us we are remitting the appeals back to him with our opinion.

29. Reference answered accordingly.


JUDGMENT <NAME>, C.J.

1. This is an application to quash the order of <ORG> passed in a House Rent Appeal. The order sought to be quashed is dated 21-10-1948. No doubt the learned advocate for the petitioner is right in saying that there are circumstances which account for the delay. Though there is no specific period of limitation, it has generally been the accepted practice of this Court not to exercise the extraordinary power by way of the issue of prerogative writs when there hag been a long delay since the passing of the order sought to be quashed. We, therefore, dismiss the appli-

cation on this ground, but in the circumstances we make no order as to costs.


JUDGMENT Divatia, J.

1. This appeal arises in execution proceedings of a decree obtained by the present respondent against the appellants, who are the judgment-debtors. The decree was passed on November 24, 1923, for Rs. 5,550 in suit No. 973 of 1921. Two years later, another suit was filed by the present appellants against the respondent. That was suit No. 1169 of 1923 in which the appellants ultimately got a decree in their favour against the respondent on February 20, 1925. An appeal was filed against this latter decree by the present respondent on June 15, 1925, and that appeal was decided finally on January 27, 1930, by the appellate Court, which confirmed <ORG> decree.

2. Now, the events that led to this appeal arose in this way

3. The present respondent filed his darkhast No. 70 of 1924 against the appellants on January 16, 1924, and therein he applied for the execution of the whole of the decree obtained by him, i. e., to recover Rs. 5,550 with interest and costs. After this darkhast was filed, the cross-suit against the present respondent was disposed of, as I have stated, on February 20, 1925, and it appears from an order passed by the executing <ORG> on March 9, 1925, that there was an agreement between the parties to the following effect, when both the suits were going on. The agreement was that after the two decrees were passed, the party who was entitled to the larger amount should pursue execution of the decree in his favour to the extent of the excess. In virtue of that agreement the executing <ORG> seems to have disposed of the darkhast on March 9, 1925, stating that execution can only lie for the excess amount and not for the amount decreed in the respondent's favour. Then, on February 20, 1928, the respondent filed a second darkhast No. 374 of 1928 for execution of the whole of the decree obtained by him against the appellants. It appears that in that darkhast the present appellants had objected that that darkhast was time-barred, that the execution could lie only for the excess and not for the whole amount, but that darkhast was dismissed, without going into these contentions, on June 20, 1928. A third darkhast No. 2062 of 1929 was filed by the respondent against the appellants on November 18, 1929, to recover the excess, that is the balance remaining in his favour after deducting the amount of Rs. 4,068 decreed against him. In that darkhast it was held by the <ORG> on September 8,1930, that the darkhast was in time, but that it was premature, because the appeal which was filed by the present respondent in the decree passed against him in favour of the appellants was not decided at the time of the application, and it appears that that order was made on account of the written statement filed by the present appellants in that darkhast on January 20, 1930, in which they stated that the darkhast should be suspended as the respondent had filed an appeal against the decree obtained against him by the appellants. It appears that the respondent acquiesced in that contention and that darkhast was disposed of by the <ORG>, even though it appears that before the date of the disposal of this darkhast, the appeal was decided on January 27, 1930, and the ground of appeal seems to be that as an appeal was pending at the time when these execution proceedings were going on and as the execution proceedings were filed only for the balance the application itself could not lie. Then the respondent filed the present darkhast, from which this appeal has been preferred, on October 30, 1930, in which he asks for the excess amount only as against the appellants.

4. The appellants' answer to this darkhast is that this darkhast is time-barred, because the second darkhast filed by the respondent was itself time-barred, and, secondly, that it was not in accordance with law, and therefore it did not save limitation, and the argument is that under the agreement between the parties, which is embodied in the order passed by the executing Court on the first darkhast, execution has to be taken out after the decree of <ORG> was passed, and the second darkhast which was taken out was not in accordance with law, because it did not comply with the provisions of Order XXI, Rule 11(g), of the Civil Procedure Code, which lays down that the cross-decrees passed before or after the date of the decree sought to be executed should be stated in the application for execution. Admittedly, the respondent, when he filed the second darkhast in February, 1928, did not mention the fact of the passing of the cross-decree which was passed in February, 1925, and on this ground it was urged that the second darkhast was not in accordance with law, and, therefore, it could not be regarded as a step-in-aid of the execution of the decree, with the result that the fourth darkhast would be barred by time as the intermediate darkhast itself was time-barred.

5. The learned Judge has accepted the appellants' contention with regard to the second darkhast, viz., that it was not in accordance with law inasmuch as the respondent did not comply with the provisions of Order XXI, Rule 11, which are peremptory. But in his view, even though the second darkhast has not been in accordance with law, and cannot, therefore, be regarded as a step-in-aid of execution, the fourth darkhast could not be time-barred, because it is the date of the decree of the appellate Court which is the starting point of limitation for the purpose of this darkhast, and according to the learned Judge the agreement between the parties, really speaking, was that the party in whose favour the excess was decreed was entitled to execute his decree after the decrees were passed, and the decree to be executed was not simply the decree in the suit, but any final decree that would be passed in those proceedings, which would include a decree in appeal when an appeal has been preferred against that decree, because it is the appellate Court's decree in which the original Court's decree would be merged, and he, therefore, held that the effectual decree for the purpose of set-off would be only the final decree in the suit, i.e., the decree in appeal, and that decree being on January 20, 1930, and the present darkhast being filed on October 30, 1930, it was not time-barred at all, and he has, therefore, directed that execution should proceed in this darkhast and attachment should issue against defendant No. 1's moveable property and warrants of arrest against defendants Nos. 2 to 4.

6. Against this order the appellants have filed the present appeal, and Mr. <NAME>, their learned advocate, has urged two points, viz., that the present darkhast is time-barred, because the second darkhast itself was time-barred, and therefore was not a step-in-aid of execution, and, secondly, that the agreement between the parties was that it is the decrees in the suits that are to be set-off against each other, and not the decree in appeal, and, therefore, the present respondent ought to have filed a darkhast within time from the date of the decree in the suit, and not from the date of the decree in appeal.

7. Now, in order to appreciate these points, which, really speaking, are based upon one point, viz., as to what was the exact agreement between the parties which was embodied in the order of the <ORG> in the first darkhast, we have to see as to the nature of the agreement between the parties. The agreement between the parties clearly shows that it was to make a set-off as between these two cross-decrees, but it is important to note that this set-off was not a set-off which was contemplated by Order XXI, Rule 18, which states that such set-off between the cross-decrees is to be ordered by the executing <ORG>, where applications were made to the <ORG> for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties. Admittedly, here, the only application made was the application in the first decree, and no application has been made with regard to the execution of the second decree at all. Therefore, Order XXI, Rule 18, would not apply and the set-off, therefore, would not be a set-off as contemplated by the provisions of the Civil Procedure Code, or as ordered by the <ORG>, but only as agreed to by the parties to these proceedings, when the two suits were proceeding. We are not, therefore, concerned as to what would be the effect of the set-off when no execution application is made within three years of the suit. We have to be guided here with what was agreed upon by the parties at the time. I have quoted above the agreement between the parties which is embodied in the order of the executing <ORG> in the first darkhast, and in our opinion that agreement really amounted to this, that any party in whose favour the excess was decreed had ultimately to take out execution, and the excess can only be ascertained after the final decree is passed, and the final decree, therefore, would be the decree passed in the appeal, if any, preferred by any of the parties.

8. It is true that the only appeal that was filed was by the respondent against the appellants, and no appeal was filed by the appellants. But the appeal that has been filed by the respondent, no doubt, was not filed till June, 1925, that is, nearly three months after the order of the <ORG> incorporating the agreement between the parties.

9. Mr. <NAME> has argued that at that time, i. e., on March 9, 1925, it could not have been the intention of the parties that it was the decree of the appellate <ORG> that was to be taken as the starting point of limitation, because no appeal had been filed by that time at all. But what is to be looked to is the agreement between the parties, and not the events that have happened, and what could have been contemplated between the parties, and we think that if the parties contemplated that it was only the excess amount that had to be recovered from one party by the other, it is only the excess amount as finally decided by the <ORG> as due to the party that is the determining amount for the purpose of execution, and the determining date for that purpose would, therefore, be the date of the appellate <ORG>'s decree, viz., the decree in appeal. We, therefore, think that the lower <ORG> was right in holding that it is the decree of the appellate <ORG> that is the starting point for limitation.

10. But, apart from that, we think that even according to the general provisions of the law the decree would mean the final decree in the proceedings between the parties, and it has been recently held by our <ORG> in <CITATION> (1928) 31 Bom. L.R. 484 that a suit and all appeals made therein are to be regarded as one legal proceeding, and that in the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity. That being so, even according to the general provisions of the law, the execution of the decree would mean the execution of the final decree in the proceedings between the parties, and from that standpoint also, it is the appellate decree that has to be executed. In this view of the facts and the law, the decision of the lower <ORG> would be correct, even apart from the fact as to whether the second darkhast presented by the present respondent was in accordance with law or not. It is no doubt true that in that darkhast the present respondent did not comply with the provision of Order XXI, Rule 11, inasmuch as the information that has to be given in column (g) as to the amount with interest due upon the decree or other - relief granted thereby, together with particulars of any cross-decree whether passed before or after the date of the decree sought to be executed, was not supplied, and the question, therefore, would be whether the omission to mention the particulars of the cross-decree would so invalidate this darkhast as to make it not in accordance with law, with the result that it would not be a step-in-aid of execution of the decree.

11. On that point there seems to be some difference of opinion between <ORG> and <ORG>. <ORG> has held in <CITATION> (1895) I.L.R. 23 Cal. 217 that such a defect in the application would make the application not in accordance with law and therefore it could not be a step-in-aid of execution, although, no doubt, some of the. observations made in that case have been shaken by a subsequent decision of the same <ORG> in <NAME> v. <NAME> (1926) I.L.R. 53 Cal. 664. On the other hand <ORG> has taken a very liberal view of the provisions, and seems to be of the opinion that the mere omission from the execution petition of the particulars required under Order XXI, Rule 11, is not sufficient to make it otherwise than in accordance with law, and reference may be made in this respect to the cases of <NAME> v. <NAME> and <CITATION>  A.I.R. Mad. 872. We think that although it is not necessary for the purpose of this decision to pronounce any opinion on this point, in order to see whether a particular application for execution is or is not in accordance with law, what has to be looked to in each particular case is whether the executing <ORG> would or would not issue execution on the application for execution as preferred to it, and we think that the test is correctly laid down by <ORG> in <NAME> v. <NAME>, and that test is (p. 665) The expression' in accordance with law' in Article 182(5) should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. If the omissions were such as to make it impossible for the <ORG> to issue execution upon it, it should be held that such an application was not in accordance with law.

12. And Where an application for execution in substantial compliance with the law is preferred to the <ORG>, such an application will be effectual to stay the progress of limitation whether the <ORG> admits, or rejects, or returns the application or allows such application to be amended;

so that, according to this test each case would depend on its own facts as to whether the application for execution was or was not in accordance with law.

13. Mr. <NAME> has contended that Order XXI, Rule 17, provides that if the provisions of Rule 11 are not fulfilled, then the application has to be returned to the party, and it is only after the application is amended that it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

14. It is no doubt true that, according to this rule, when the application is returned for amendment, it is only after the amendment that it becomes in accordance with the provisions of the law. But before the <ORG> returns the application for amendment, it is the <ORG> that has to satisfy itself as to whether the application is or is not in substantial compliance with the law, and therefore the point still remains as to whether the application is materially defective in that respect, or whether the defect is only technical.

15. Mr. <NAME> has also urged another point with regard, to the second dar-khast, viz., that even apart from the first contention the second darkhast would be time-barred, because it was presented on February 20, 1928, and it is presented more than three years after the date of the first darkhast, viz., January 16, 1924, and therefore from that standpoint the second darkhast must be time-barred, and the respondent could not get the benefit of the amending Act of 1929, because that Act came into force on January 1, 1929, i.e., after the respondent had lost his right under the former Act, and that therefore the second darkhast could not be regarded as within time at all. This point does not seem to have been taken in any of the Courts below either in the second, or the third or even in the present darkhast, and if this appeal is not disposed of upon the first point that I have mentioned, viz., that the starting point of limitation dates from the date of the decree of the appellate Court and not from the date of the decree of the trial Court, it might have been necessary to go into that question. But, in the view that we have taken of this matter, it is not necessary to go into that question, and we, therefore, think that the decision of the lower Court on the ground on which it has made it being correct, this appeal will be dismissed with costs.


<NAME>, J.

1. These are three consolidated appeals from three decrees of <ORG>, the first dated the 19th of March 1909 and the other two the 29th of March 1911.

2. By the first of these, certain decrees of the Subordinate judge of Partabgarh, dated the 22nd of July 1908, were in part affirmed and in part reversed, and by the two latter a judgment and decree of the District Judge of Rae Bareli, dated the 5th of February 1910, was also in part affirmed and in part reversed.

3. By this decree of the 5 the of February 1910 a previous decree of the same Subordinate Judge, dated the 3rd of August 1909, was in part affirmed and in part reversed.

4. The facts out of which all this litigation has arisen are shortly as follows :-

A certain estate in five villages in the Partabgarh district was owned by two joint Hindu families, the respective heads of which were two brothers <NAME> and <NAME>, the share of the said <NAME>'s branch being 7 annas 2 pies and that of <NAME>'s branch 8 annas 10 pies.

5. A genealogical table set out in the respondent's case, the accuracy of which is not disputed, shows of what members these two families were composed :-

<NAME>

| | <NAME> | | --------------- | | | | <NAME> | Bhukan | ---------------------- | | | Bijai Bahadur Bhopal Reghubar

6. The persons whose names are printed in italics are plaintiffs in the two suits, numbered 548 and 549 of 1907, in which the decrees appealed from were respectively made, namely, <NAME> and <NAME> in the first, and <NAME> in the second. In each of these suits one <NAME>, not a member of either family, but claiming an interest in portions of the joint family property under certain agreements, was joined as a plaintiff.

7. By two deeds, dated respectively the 2nd of January 1900 and 3rd of October 1901, <NAME> purported to sell to <NAME> (the appellant) his share of the joint family property.

8. Thereupon <NAME>, as co-sharer in the family estate, instituted two pre-emption suits in respect - of these two sales, and obtained decrees therein. He subsequently, by deeds dated the 4th of June 1903 and 3rd of August 1903 respectively, purported to sell and convey to the same <NAME> (the appellant) the share of the property the right to which he had thus acquired by pre-emption, together with all but a six annas share of his own share of the family property. In addition he, by deed dated the 4th February 1907, mortgaged this latter six annas share to the same <NAME> to secure a sum of Rs. 12,000. The mortgage was a possessory mortgage for a period of twenty-five years. <NAME>, <NAME> and <NAME> determined to impeach all these dealings with the joint family properties as being, on several grounds, void according to <ORG>., but they had no money to meet the cost of litigation.

9. Two agreements, both dated the 25th of April 1907, were accordingly entered into between them and <NAME>, the one by <NAME> and <NAME> jointly and the other by <NAME>. They are practically identical in terms. They provided that <NAME> should in each case finance the contemplated litigation on certain terms to be presently considered in detail.

10. Two actions were accordingly instituted in <ORG> of Partabgarh, the first on the 10th of August 1907, in which <NAME>, <NAME>, and <NAME> were plaintiffs, and <NAME>, <NAME>, and <NAME> defendants, praying for "a decree for proprietary and actual possession of 4 annas 9 pies 6f karants under proprietary share " in five villages therein of A named and for Rs. 1,704-14-931, mesne profits. In other words, <ORG> it was an action of ejectment and for recovery of mesne rates.

11. In the second suit <NAME> and <NAME> were At plaintiffs, and <NAME> and his grandsons <NAME> and <NAME> defendants. The relief claimed was similar, namely, to recover possession of one-sixth of the property conveyed away by <NAME> by the three deeds already mentioned.

12. In both suits a plea was filed to the effect that <NAME> was not entitled to recover possession. That point was thus distinctly raised. Both suits were contested, and both heard together.

13. The principal defendant in the first suit, by deed dated the 22nd of April 1908, compromised with the two principal plaintiffs in that suit, namely, <NAME> and <NAME>. The deed provided, amongst other things, that the claim of these plaintiffs to recover the possession of the lands mentioned should be dismissed, and their claim for mesne profits rejected. This deed was filed in <ORG>, and on an application made under Section 375 of the Code of Civil Procedure, the suit was dismissed as against these plaintiffs. A similar compromise was entered into in the second suit with <NAME>, and that suit was similarly dismissed as against him. <NAME> thus became the sole plaintiff in both suits. His claim to recover the possession of the shares of the property mentioned in them respectively thus rests entirely upon the agreements he so entered into with these plaintiffs. Even if all the impeached deeds were absolutely void he would not be entitled unless these agreements conferred upon him a right to recover possession of the undivided shares of these villages of which he seeks to recover the possession. The agreements thus become the foundation of his title. Until their true construction and the nature of the rights they confer have been determined, it is irrelevant to consider the question of the validity or invalidity of the deeds. The other is the preliminary question, and it has not only been raised, but actually ruled upon by the Subordinate Judge in his judgment delivered upon the 22nd of July 1908. In the last paragraph but one of this he, when dealing with the seventh issue, said : " The suit, however, cannot fail altogether, as was contended by defendant 1. Plaintiff 3 has acquired an interest as to half the property." This seventh issue ran thus: "To what relief, if any, are the plaintiffs entitled?" Owing to the compromise, that issue came to mean, to what relief is the third plaintiff, <NAME>, entitled ? And the last of the reasons stated in the appellant's case lodged in these appeals is that the respondent, <NAME>, is " not entitled to possession of the property in suit or to any other relief." It may well be that this question, though raised, was not much discussed, or not at all discussed on the hearing of the appeals before the <ORG> of the Judicial Commissioner, but since the point arises on the very face of the documents on which the plaintiff's case is founded, their Lordships think they are bound to decide it. It would be quite impossible for them to advise <NAME> to grant to a litigant relief to which they were of opinion he was not entitled, simply because those concerned for the parties in the cause abstained from discussing in the <ORG> from which the appeal to <NAME> had been taken a vital point plainly appearing on the very face of his written proofs, and plainly raised as this point has been in this case.

14. As the two agreements are practically identical in terms, it will be sufficient to consider one of them.

15. It is elementary law that a plaintiff in an action of ejectment must recover by the strength of his own title, not the weakness of his adversary's.

16. What may be the rights or interests, if any, which the plaintiff may have under these agreements in the subject-matter of the suit are irrelevant considerations if he has not a right to the possession he seeks to recover.

17. The primary question for decision, therefore is, did the agreement in the first action confer upon <NAME> at the time that action was instituted a then present right to that possession? There is no suggestion that if he had not the right then he has since acquired it.

18. The provisions of the agreement setting forth the conditions upon which it was entered into, relevant on this point, run as follows:-

1. That in the share of each declarant amounting to 2 <ORG> 4 pies and 13 1/3 <ORG>, <NAME>, will be a co-sharer of one-half share, and the remaining one-half share will belong to us, the declarants as follows :-

<NAME>...2 annas 4 pies is and karant share.

<NAME> ...2 " 4 " 13 1/3rd "

2. We, the declarants, and <NAME>, will be bound by the following conditions :-

(a) That <NAME> will bear the entire expenses in connection with the suit from the original <ORG> to the <ORG> of Appeal from his owe pocket in the way he pleases, and if the opposite party prefer any appeal then <NAME> will have to defend the appeal also with his own costs.

(b) That in case of success <NAME> will be entitled to proprietary possession of the share entered in para, 1 of this document or one-half of the share which may be decreed, and it will be at the pleasure of <NAME> either to keep his share joint or to have it partitioned, But during the period of jointness he will have all rights of making collections and management of the <NAME> share decreed.

(c) That <NAME> will remain a co -sharer and proprietor like ourselves in all the sir and khudkasht lands and all Zemindari rights relating to the Zemindari share like ourselves, and we will have no right to keep separate possession over any sir and khudkasht land, nor will we raise any plea as to exproprietary right.

19. In the view of their Lordships these provisions did not confer upon <NAME> a then present right to the possession of any share in the property the subject-matter of the suit. That right would arise, if at all, only when success in the contemplated litigation had been achieved. Success has not been achieved. By the agreement it was contracted that up to that time, at all events, he, <NAME>, should merely be a partner, or co-owner with his co-plaintiffs in a certain undivided fraction of the property mentioned in the first of its paragraphs. There was no present grant or assignment to him of any separate share or fraction of; the property divided or undivided. At best the contract only amounted to this, that in a certain future event he should become entitled to the proprietary possession of a certain undivided fraction of it, and then have the right to have that fraction partitioned.

20. The case of <NAME> v. <NAME> (1905) L.R. 32 I.R. 113 is wholly different from the present. There the sole owner of certain lands, who had already sold one-half of them, executed a deed of sale in which it was set forth that " he has sold half the estate to the <NAME> for a lackh and a half of rupees." He acknowledged the receipt of one lackh, the balance had to be paid on the termination of certain litigation, which the <NAME> was to conduct at his own expense. The statement of the amount of the consideration was no doubt exaggerated. But the vendor, never impeached his deed as not being a valid transfer of the property. On the contrary, he had more than once affirmed it, urged the <NAME> to take proceedings founded upon it, and continued to receive payments due to himself under it. The terms of the instrument are not set out at length in the report of the case, but Lord <NAME> in delivering the Judgment of the Board, after dealing with all the facts and quoting from the deed the passage already mentioned, says at p. 121 of the report: "Their Lordships agree with the judgment of <ORG> that the transaction was a present transfer by <NAME> (the sole owner) of one moiety of his' interest in the estate giving a good title to the <NAME> on which it was competent for him to sue." The case cannot be relied upon as a guide to the true construction of the agreements in the present case.

21. On that construction their Lordships are clearly of opinion that neither agreement by its terms confers upon the respondent <NAME> any present right to recover the possession of the share of the property mentioned in it which he claims to recover. They accordingly think that these appeals should be allowed, that the three judgments and decrees of <ORG>, dated the 19th of March 1909 and the 28th March 1911 respectively, should be set aside, that the two judgments and decrees of the lower Courts, namely, that dated the 3rd of August 1909 of the Subordinate Judge, and that of the District Judge of Rae Bareli, dated the 5th February of 1910, should also be set aside, and that both the suits should be dismissed with costs, and they will humbly advise His Majesty accordingly. The respondent must pay the costs of these consolidated appeals.