JUDGMENT

1. The question in this appeal is whether 'an application under Order 21, Rule 95 for delivery of property by a decree-holder who has purchased the property in execution of his own decree is a step-in-aid of execution within the meaning of the expression in Article 182 , Clause 5 of the third column of the Limitation Act . The argument of Mr. <NAME> for the appellant may be summarised under the following heads:

1. <CITATION> . (1900) ILR 24 Mad 185, which is a case in point, is opposed to the decisions before and after it.

2. The expression " purchaser at a sale in execution of a decree " in Article 138 of the Limitation Act is equally applicable to a decree-holder who purchases property in execution of his own decree as well as to a person who is a stranger to the decree, and therefore the former should be held to occupy the same position as the latter in regard to applications made after the <ORG> sale.

3. When the judgment-debtor's property is purchased in <ORG> sale by the judgment-creditor the decree is wholly or partially satisfied and thereafter there is no decree to be executed to the extent of the value of the property sold.

4. An application by a decree-holder can be a step-in-aid of execution only when an execution application is actually pending. Such an application cannot be said to be pending when a decree has been satisfied by the decree-holder purchasing the property of the judgment-debtor in <ORG> sale.

2. <CITATION> (1900) ILR 24 Mad 185 it was held that an application by the decree-holder for delivery of the lands purchased by him in execution of his decree was a step-in-aid of execution as the execution was not complete so long as the purchaser had not secured possession! This case is directly in point and the authority of this case has not been challenged for quarter of a century. It would not be right to question the correctness of a decision, which has been accepted as laying down the law correctly for a number of years. The <ORG> should follow the principle of Stare decisis in deciding points already decided by the <ORG>. A decision of a Bench on a point of law should be held to be good till <ORG> upsets it or takes a view opposed to it or <ORG> of the High <ORG> overrules it. As the authority of <CITATION> (1900) I L R 34 Mad 185 is said to be opposed to the decisions preceding it and the decisions subsequent to it, we proceed to consider whether it is so or not.

3. It is urged that the decisions in <NAME> v. <NAME> (1871) 6 MHCR 304 and C.M.A. No. 122 of 1895 are against the view of this. <ORG> in <CITATION> (1900) ILR 24 Mad 185. In <NAME> v. <NAME> (1871) 6MHCR 304 the facts were: The defendant became the purchaser of the property sold in execution of a decree and the price for which the sale took place was sufficient to satisfy the decree. Instead of paying the purchase money into <ORG> the defendant retained the whole sum with the assent and knowledge of the plaintiff upon the understanding that he should give a receipt to the <ORG> for himself and on behalf of the plaintiff and afterwards should pay to the plaintiff his portion of the amount decreed. The defendant presented a petition to that effect to the <ORG> and obtained the necessary certificates confirming the sale. The defendant having failed to pay the amount to the judgment-creditor which he was entitled, the latter brought a suit for the amount. It was contended that Section 11 of Act XXIII of 1861 corresponding to Section 47 of the present Code was a bar to the suit. The learned Judges held that the plaintiff's suit was not barred. There is no doubt an observation of the learned Judges that the execution proceedings were completely at an end and no subsequent application under the decree could have been entertained by the <ORG> which executed it. But the observation of the learned Judges should be considered in connection with the facts of the case. It is not proper to rely upon one or two sentences in a judgment without reference to the facts of the case. In that case the decree-holder consented to take the amount of the decree from the auction-purchaser and allowed satisfaction of the decree to be entered up. The auction-purchaser not having paid the money he had to bring a, suit. The decree having been satisfied there was no decree to be executed. It would be the same thing if a decree-holder instead of executing the decree takes a fresh document from the judgment-debtor in satisfaction of the decree; and in such a case if the judgment-debtor fails to pay the amount under the document can the decree-holder execute the decree in satisfaction of which he took the document? It is an arrangement subsequent to the passing of the decree between the judgment-creditor and the judgment-debtor whereby the decree is satisfied, and if the subsequent agreement is not acted up to, the only remedy is to enforce the agreement. <NAME> v. <NAME> (1871) 6 MHCR 304, therefore, is not an authority for the contention that the decree-holder's application in this case is not a step-in-aid of execution, nor is it against the view of the learned Judges in <CITATION> (1900) ILR 24 Mad 185. In C.M.A. No. 122 of 1895, <NAME>, J. sitting as a single Judge followed the decision in <NAME> v. <NAME> (1871) 6MHCR 304. But the facts of the case were not the same as those in <CITATION> (1900) ILR 24 Mad 185. In C.M.A. No. 122 of 1895 the facts were as follows: The 2nd defendant in the case objected to the delivery of possession on the ground that the purchaser got possession of the lands sold to him and that the <ORG> should ascertain the price and position of the plots sold and direct delivery of possession. <NAME>, J. held that such an application did not lie inasmuch as there had been a sale and the decree-holder was put in possession, and in the circumstances the execution came to an end because the sale itself was not questioned. It is difficult to see how this decision has any bearing on the question in <CITATION> (1900) ILR 24 Mad 185. It may be noted in passing that <NAME>, J., who decided C.M.A. No. 122 of 1895 was one of the Judges who decided <CITATION> (1900) ILR 24 Mad 185. <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 is strongly relied upon as supporting the appellant's contention. In that case the judgment-debtor had made an application to the <ORG> for entering up satisfaction. The decree-holder had objected to satisfaction of the decree being entered and filed a statement called counter-statement denying the receipt of the decree amount and asking that the petition should be dismissed. It was contended that the counter-statement was a step-in-aid of execution. <NAME> and <NAME>, JJ. held that the statement was not a step-in-aid of execution. The observation of <NAME>, J., who delivered the judgment of the <ORG>, that an application to be a step-in-aid of execution should be made in a pending execution application is strongly relied on, <NAME>, J. differs from the observation of <NAME>, J. in <CITATION> (1921) ILR 45 Mad 202 : 41 MLJ 374. With very great respect we are unable to agree with the view of <NAME>, J. that an application in order to be a step-in-aid of execution should be made in a pending execution application. We shall deal with this point specifically under the fourth head. The facts of the case in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 are distinguishable from the present. In that case the so-called counter-statement was not an application to have the decree executed or to enable the <ORG> to do anything which would further the execution of the decree. As we have observed, the observations in a judgment should be considered in connection with the facts of the case. <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 is considered as an authority in favour of the appellant, we should respectfully dissent from it. But we hold that this is not an authority on the point now in question. <CITATION> (1924) 48 MLJ 506, to which one of us was a party, is also relied upon. In that case the mortgagee decree-holder applied for the payment out of a sum of money in <ORG> which was not realised in execution of the decree. It "was held that that application was not a step-in-aid of execution. The observation at page 509 that where an act of the plaintiff is not in furtherance of execution or in a pending execution it cannot be said to be a step-in-aid of execution does not help the appellant. It is clearly stated that the act must either be in furtherance of execution or in a pending execution and the passage cannot be twisted to mean that the application should be in a pending execution application. That case therefore is not against the decision in <CITATION> (1900) ILR 24 Mad 185. The decision in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 was followed by another Bench of this <ORG> in C.M. Section A. No. 120 of 1923 Since reported in <CITATION> (1926) 51 MLJ 480. The facts in that case were very similar to the facts in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303. There also the judgment-debtor applied to the <ORG> to have satisfaction of the decree entered and the decree-holder put in a statement objecting to the satisfaction being entered. The <ORG> held that the filing of such statement was not a step-in-aid of execution. The learned Judges, <NAME> and <NAME>, JJ., negatived the contention that an application in order to be a step-in-aid of execution should be made in a pending execution application. It is clear from the above discussion that there is no case so far as this High <ORG> is concerned which is against <CITATION> (1900) ILR 24 Mad 185 or which questions its correctness.

4. The argument that the expression "purchaser at a sale in execution of a decree " in Article 138 covers the case of a judgment-creditor who purchases the property in execution of his own decree is untenable. It is well settled that a decree holder who purchases property in execution of his own decree cannot bring a suit for possession of the property purchased by him. Article 138 of the Limitation Act must be read along with the provisions of the Civil Procedure Code. Section 47 of the Civil Procedure Code bars a suit by a decree-holder for possession of the property purchased by him in execution of his own decree. <NAME> v. <NAME> (1902) ILR 26 MAD 740 : 13 MLJ 474, <NAME> v. Hussain Sahib (1904) I L R 28 Mad 87 : 14 M L J 474 and <NAME> v. <NAME> (1890) ILR 13 Mad 504. To hold that an application like the present is not an application in execution of a decree would be tantamount to holding that the above decisions are incorrect for it has been consistently held that when the decree-holder applies for delivery of possession of the property purchased by him the <ORG> should consider the objection and an appeal lies under Section 47 against the order made by the executing <ORG>, and there is no warrant either in principle or in authority to hold a different view.

5. The contention that there is nothing to be executed after the decree-holder purchases the property in execution of the decree is denying the decree-holder a right to which he is entitled. The mere fact that he purchases the property of the judgment-debtor is not pro tanto a satisfaction of his decree. He is allowed to give credit for the value of the property purchased by him, but that alone would not be sufficient to satisfy the decree. Till he obtains possession it cannot be said that his decree is satisfied to the extent of the value of the property purchased. He has to apply to the <ORG> for delivery of possession. The contention that the moment he buys the property of the judgment-debtor he ceases to be the decree-holder and assumes the capacity of a stranger purchaser is not supported by any authority. When the law prescribes a certain course to be pursued by the decree-holder even when he becomes the purchaser of the property it is not open to rely upon the expression used in Article 138 of the Limitation Act and to hold that his capacity as decree-holder ceases the moment he becomes the purchaser in <ORG> sale. We hold that the execution is not complete till the decree-holder obtains possession of the property purchased by him in execution of his decree.

6. An act or an application in order to be a step-in-aid of execution need not be in a pending execution application. This point was decided so far back as <CITATION> (1882) I L R 5 Mad 141 and it is too late in the day to question the principle of that decision. In that case the judgment-creditor applied to the Court which passed the decree for a certificate that a copy of <ORG> was necessary to enable him to obtain such copy from the Collector's Office and thereupon to execute the decree by attaching the land. It was held that that application was a step-in-aid of execution. <NAME>, J., observed at page 143--

I agree with the observations in <CITATION> (1877) I L R 3 Cal 235 (FB) that any application in furtherance of an application to put a decree into execution may be held to be an application to enforce the decree.

7. <NAME>, J., concurred in the view. This case was followed in <CITATION> (1913) I L R 38 Mad 695 : 26 M L J 433. <CITATION> (1921) ILR 45 Mad 202 : 41 MLJ 374 Ramesam, J., observed:

In my opinion there is no warrant for the view that an application to take a step-in-aid of execution should be made in execution.

8. We entirely agree with the observation of <NAME>, J.

9. When the decisions of our own <ORG> are almost unanimous as regards a certain point it is unnecessary to consider what the Views of the other <ORG>s are on that point. We may, however, remark that the views of the Bombay and Calcutta <ORG>s are in accordance with our view. In Sadashiv bin <CITATION> (1913) I L R 38 Mad 695 : 26 M L J 433 the point before us was specifically decided and in <CITATION> (1926) 43 C L J 34.5 (FB) a Full Bench of the Calcutta <ORG> held the same view as that in <CITATION> (1900) ILR 24 Mad 185. There are conflicting views in the decisions of the Allahabad <ORG>. The Patna <ORG> no doubt takes a different view.

10. On a careful consideration of the cases on the point we have no hesitation in answering the question in the affirmative. The appeal fails and is dismissed with costs.


PETITIONER: <NAME> Vs. RESPONDENT: MANAK CHAND SURANA DATE OF JUDGMENT: 16/10/1969 BENCH: <NAME>, M. (CJ) BENCH: <NAME>, M. (CJ) SIKRI, S.M. RAY, A.N. REDDY, P. JAGANMOHAN CITATION: 1970 AIR 694 1970 SCR (2) 835 1969 SCC (3) 268 CITATOR INFO : R 1975 SC2299 (138,186,229,230,314,362,690) RF 1976 SC2283 (34,36,40,41) RF 1977 SC 682 (3) R 1984 SC 664 (4) RF 1992 SC1213 (34) ACT: Constitution of India, 1950, Art, 191(1)-Office of profit--office of Special Government Pleader if such office. Retrospective legislation candidate held to be disqualified because of holding office of profit-State <ORG> enacting that such Office not an office of profit and validating election-Effect of. Representation of the People Act , s. 82(b) -Any other candidate' against whom corrupt practices are alleged, to be made party.-Scope of. HEADNOTE: Disputes between the State of Rajasthan and a company were referred to arbitration and the Government Advocate was appointed to represent the State. Another advocate was appointed to assist the Government Advocate but as the- advocate was table to appear, the appellant was no appointed under 0.27, r. 8B of the Civil Procedure Code, as Special Government Pleader. The appellant then stood for election to <ORG> and was declared elected. The election was challenged and one of the grounds of challenge was that the appellant held an office of profit within the meaning of Art. 191 of the Constitution. <ORG> set aside the election. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of <ORG>; and by s. 2(2) , the Act was made retrospective removing- the appellant's disqualification retrospectively. On the questions : (1) Whether the appellant was holding an office of profit and hence was disqualified; (2) Whether the disqualification was removed by Act 5 of 1969; and (3) Whether the election petition was in accordance with law, because, another candidate from another constituency, again t whom corrupt practices were alleged, was not impleaded as a party, HELD : (1) (Per <NAME>, <NAME> and <NAME>, JJ.) : The appellant was not holding an office of profit. (a) Before a person becomes subject to the disqualification in Art. 191(1) there must be an office which exists independently of his being the holder of the office. The word 'office' means an office or employment which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders; but if a person was engaged on whatever terms to do the duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. Hence an office does not come into existence every time a pleader is asked by the Government to appeal, in a case on its behalf. [847 F; 848 A-B; 850 G-H] p.Cl/70-8 836 (b) A reading of s. 2(7) and 0 .27, r. 8B of the Civil Procedure Code A shows, that even an advocate who is. acting under the directions of the Government Pleader could be deemed to be a Government Pleader. Therefore, the notification of the appellant's name under r. 8B as Special Government Pleader did not amount to the creation of an office. [850 F-G] (c) Assuming that a Government Pleader is an agent of the Government for purposes of receiving processes against the Government, the fact that processes could be served on an advocate, would not mean that the advocate was holding an office under his client. [851 A-B] (d) It is not necessary to give a wider meaning to the word 'office' because, if <ORG> thinks that a legal"practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a member of <ORG>, it can make that provision under Art. 191 (1) (e) of the Constitution. [851 C-D] <ORG> v. <NAME>, 8 Tax Cases 231 and <NAME> v. <NAME> (H. M. Inspector of Taxes) 24 Tax Cases 190, applied. <CITATION> . 2 S.C.R. 422 distinguished. <CITATION> ,  1 S.C.R. 1004, referred to. (Per <NAME>, <NAME> and <NAME>, J. dissenting) : <ORG> was right in holding that the appellant held an office of profit. [842 C] It was not a case of the appellant merely being briefed as a lawyer and given the Government litigation. On the other hand an office, that of Special Government Pleader was created, and since the office of a Government Pleader is an office of profit, the office of Special Government Pleader will equally be an office of profit. It was an office which could be successively held, it was independent of its holder, it was a substantive position and as permanent as other supernumerary offices. [841 FG; 842B] <CITATION> .  2 S.C.R. 422 and The Statesman (P.) <CITATION> .  3 S.C.R. 614 applied. <NAME> v. <NAME>,  A.C. 561 and <ORG> v. <NAME>, 8 Tax Cases 231, 235, referred to. (2) (By <ORG>) : The Act 5 of 1969 has removed the disqualification retrospectively. Per <NAME>, <NAME> and <NAME>, J. : It is well recognised that <ORG> and the <ORG> of a State can make their laws operate retrospectively subject to limitations, if any, in the Constitution. Any law that can be made prospectively may be made with retrospective operation except those which cannot operate retroactively. In Art. 191 itself, power is reserved to the State <ORG> to make a declaration that the holder of an office shall not be disqualified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retrospective effect, therefore, whatever may be the propriety of such legislation regard being had to legislative practice and the absence of a clear prohibition, express or implied. the Act must be declared to have retrospective effect. [843 B-C, D-F] 837 Per <NAME>, <NAME> and <NAME>, JJ. : <ORG> and the State legislatures can legislate retrospectively subject to the provisions of the Constitution. No limitation on the powers of the <ORG> to make a declaration validating an election, effective from an earlier date, is expressly stated nor could it be implied in Art. 191(1). ]851 F-G; 852 D-E] The apprehension that it may not be a healthy practice and might be abused is no ground for limiting the powers of the State <ORG>. [852 B] The impugned Act does not amend or alter the Representation of the People Act , 1951, in any respect whatsoever. By enacting the impugned Act, the disqualification if any, which existed in the 1951 Act has been removed, but that is what the State <ORG> is entitled to do under Art. 191 so long as it does not touch the wording of the 1951 Act. [852 F-G] (3) (By <ORG>) : The words 'any other candidate' in s. 82(b) of the Representation of the People Act, 1951, who should be impleaded, refers to a candidate in the election for the constituency which is the subject matter of the petition, and not to a candidate from another constituency. [843 G-H; 853 D-E] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1869 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 12, 1968 of <ORG> in Election Petition No. 16 of 1967.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for respondent. <NAME>, Attorney-General, <NAME>, Advocate- General. Rajasthan and <NAME>, for the State of Rajasthan.

The Judgment of <NAME>, <NAME> and <NAME> REDDY, J<NAME>was delivered by <NAME>, <NAME>, <NAME>, <NAME>. and <NAME>, <NAME> gave a separate opinion. <NAME>, C.<NAME> We regret our inability to agree that the appellant Mrs. <NAME> was not holding an office of profit under <ORG> when she stood as a candidate for election to <ORG> from the Kolayat Constituency.

Mrs. <NAME> is an advocate practicing at Bikaner. She contested the above election held on February 18, 1967 against seven other candidates. She was declared elected on February 22, 1967. One of the defeated candidates filed the election petition, from which this appeal arises, questioning her election on several grounds. We are concerned only with one of them, namely, that on the date of her nomination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under <ORG>.

Article 191 of the Constitution, which is relevant in this connection, reads :

"191 : Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or <ORG>

(a) if he holds any office of profit under <ORG> or the Government of any State specified in the First Schedule, other than an office declared by <ORG> by law not to disqualify its holder;

Mrs. <NAME> was appointed by <ORG> as Special <ORG> Pleader to conduct arbitration cases between the <ORG> and <ORG> arising out of the construction of Rana Pratap Sagar Dam and Jawahar Sagar Dam. The order was passed on June 26, 1965 (Ex. 1). The order reads:

"ORDER Sub: Construction of R.P.S. Main Dam-Contract of M/s. M.C.C. (Pvt.) Ltd., Arbitration in disputes arising out of.

In pursuance of Rule 8 (b) of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of Section 2 of the Code, the Governor is pleased to appoint Smt. <NAME>, Advocate Bikaner as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan alongwith Shri <NAME>, Government Advocate, Jodhpur. By order, <NAME> 26-6-65 (<NAME>) Joint Legal Remembrancer".

By subsequent orders, which we do not consider necessary to quote here, her remuneration was fixed at Rs. 1501- per day for each date of hearing, Rs. 75/- per day for days of travel and dates on which the case was adjourned, and days spent on preparation of the case. Mrs. <NAME> began appearing in the case from March 27, 1965. It is an admitted fact that she was paid for work between that date and November 28, 1966 a sum of Rs. 26,325/- and again from February 26, 1967 to March 2, 1967 a sum of Rs. 900/- and that the arbitration proceedings were continuing on the date of the filing of the election petition. Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took place. It is also admitted by her that prior to this employment, she had never paid income-tax in excess of Rs. 1200/- in any year.

On these facts, <ORG> held that Mrs. <NAME> was disqualified. Before this appeal came on for hearing before us, the Governor of Rajasthan by Ordinance 3/68 (December 24, 1968) removed the disqualification retrospectively. The Ordinance was followed by Act V of 1968 (April 4, 1969). The operative portions of the Act which are the same as of the Ordinance read "Prevention of disqualification of membership of <ORG>

(1) It is hereby declared that none of the following offices, in so far as it is an' office of profit under <ORG>, shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of <ORG>, namely -

(a) the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to conduct any particular suit, case or other proceeding by or against the State Government, before any court, tribunal, arbitrator or other autho- rity;

(b) the office of a Government Pleader, a Special Government Pleader or Advocate for <ORG>, appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government, in any particular suit, case or other proceeding by or against <ORG> before any court, tribunal, arbitrator or other authority;

(c) the office of a panel lawyer if the holder of such office is not entitled to any retainer or salary, by whatever named called; (4) the office of a Pradhan or Pramukh as defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Rajasthan Act 37 of 1959).

<NAME>

(2) Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall not disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of <ORG> as if this Act had been in force on the date the holder of such office filed his nomination paper for being chosen as a member of <ORG>."

The Ordinance and the Act seem to have been passed to nullify the decision in this case. One of the contentions of the answering respondent is that <ORG> could not remove the disqualification retrospectively since the Constitution contemplates disqualifications existing at certain time in accordance with the law existing at that time. We shall deal with this matter later.

When <ORG> appointed Mrs. <NAME> it bad two courses open to it. Firstly, Government could have engaged Mrs. <NAME> to conduct the particular arbitration case or cases, or even to assist the Government Advocate in those cases. Alternatively Government could create a special office of Special Government Pleader and appoint Mrs. <NAME> or any other lawyer to that office. It is obvious that Government did not choose the first course. There were as many as 26 arbitration cases then pending and more were likely to arise. Government thought that they should be conducted by the Government Advocate but as the work involved was too much as additional office had to be created and given to a lawyer. An office was therefore, created and given to Mrs. <NAME>.

In a recent case (Civil Appeal No. 1832 of 1967- <CITATION> on October 15, 1968), we held that a panel lawyer engaged to watch cases on behalf of <ORG>, held an office of profit. The duty of the panel lawyer was to watch cases coming up for hearing against the <ORG> at Ujjain and to appear in court and ask for an adjournment. The lawyer was paid Rs. 51- for each such adjournment if he was not entrusted with the case later. In dealing with this matter reliance was placed by us on the meaning to the word 'office' given in the <CITATION> (1) In the Statesman case, this Court approved of the observations of Lord <NAME> in <NAME> v. Guest(2) to the following effect :

"The word 'office is of indefinite content. Its various meanings cover four columns of the New English (1) [1968] 3 S.C.R. 614.

(2) [1942] A.C. 561.

Dictionary, but I take as the most relevant for purpose of this case the following 'A position or place to which certain duties are attached, especially one of a more or less public character."

Our brother <NAME> has also relied upon the same case and has referred to the observations of Lord <NAME> where he approved of the observations of <NAME>, J. in <ORG> v. <NAME>). Justice <NAME> said thus :

"Now it is argued, and to my mind argued most forcibly, that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment which was a subsisting permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his employmen t to do those duties did not create an office to which those duties were attached. He hereby was employed to do certain things and that is an end of it, and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being".

We say with profound respect for this most succinct exposition, that we entirely agree. The distinction that we are making is precisely the distinction which has been brought out by <NAME>, J. If Mrs. <NAME> had been briefed as a lawyer and given all the <ORG> litigation in Rajasthan to conduct on behalf, of the <ORG> she could not have been described as holding an office of profit. The aggregate of her work and her activities could not have created an office nor could she have been described as anything but an advocate. What happened here was different' An office was created which was that of a Special <ORG> Pleader. Now it is admitted that the office of a <ORG> Pleader is an office properly so-called. Therefore an office going under the names 'Additional <ORG> Pleader', 'Assistant <ORG> Pleader', 'Special <ORG> Pleader' will equally be an office properly so- called. It matters not that Mrs. <NAME> was-to conduct a group of arbitration cases and against the same party. For that matter <ORG> is always at liberty to create offices for special duties. They might have even created another office of Special <ORG> Pleader for Land Acquisition cases (1) 8 Tax Cases 231, 235.

or a group of cases or <ORG> cases or a group of cases arising out of a particular accident and so on and so forth. What matters is that there was an office created apart from Mrs. <NAME>. It is in evidence that it was first held by Mr. <NAME> another advocate. It is likely that if Mrs. <NAME> had declined some one else would have been found. Therefore, there was an office which could be successively held; it was independent of Mrs. <NAME> who filled it was a substantive position and as permanent as supernumerary offices are. Every one of the tests laid down by <NAME>, <NAME> is found here.

We would, therefore, hold that <ORG> was right in its conclusion that Mrs.<NAME> held an office. Since there is no dispute that it was for profit and under the <ORG>, the election of Mrs. <NAME> must be held to be void as she was disqualified to stand for the election. This brings us to the next question. Does the Act of <ORG> remove the disqualification retrospectively, in other words; can such a law be passed by the <ORG> after, the election is over ? The first question is whether the new law is remedial or declaratory. If it was declaratory then it would be retrospective; if remedial only, prospective unless legally made retrospective. That it has been made expressly retrospective lends support to its being remedial. Its retrospective operation depends on its being effective to remove a disability existing on the date of nomination of a candidate or his election. Of course, there is no difficulty in holding the law to be perfectly valid in its prospective operation. The only dispute is in regard to its retrospective operation.

Our brother <NAME> has cited an instance of <ORG> from May's well-known treatise when the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections. Halsbury's Laws of England (3rd Edn. Vol. 14 p. 5) has the following note :

"If a person is elected when disqualified, his dis- qualification for being a member of <ORG> may be remedied or he may be protected from any penal consequences by an Act of Validation or indemnity." The position of the British <ORG> is somewhat different from that of the Indian <ORG> and the <ORG> of the States. British <ORG> enjoys plenary sovereignty and the7 Acts of the British <ORG> no court can question. In India the sovereignty of the Indian <ORG> and the <ORG> is often curtailed and the question, therefore, is whether it is in fact so curtailed.

At the hearing our attention was drawn to a number of such Acts passed by our <ORG> and the <ORG>s of the States. It seems that there is a settled legislative practice to make validation laws. It is also well- recognised that <ORG> and the <ORG>s of the States can make their laws operate retrospectively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively. This is not one of them. This position being firmly grounded we have to look for limitations, if any, in the Constitution. Article 191 (which has been quoted earlier) itself recognises the power of <ORG> to declare by law that the holder of an office shall not be disqualified for being chosen as a member. The Article says that a person shall be disqualified if he holds an office of profit under <ORG> or the Government of any State unless that office is declared by the <ORG> not to disqualify the holder. Power is thus reserved to <ORG> to make the declaration. There is nothing in the words of the article to indicate that this declaration cannot be made with retrospective effect. It is true that it gives an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed. That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws. Regard being had to the legislative practice in this country and in the absence of a clear prohibition either express or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation.

The result, therefore, is that while we hold that Mrs. <NAME> held an office of profit under <ORG>, we hold further that this disqualification stood removed by the retrospective operation of the Act under discussion.

As regards the supplementary point that the petition was bad for non-joinder of Mr. <NAME> against whom cor- rupt practices were alleged in the petition, we are of opinion that s. 82 of the Representation of People Act, 1951, in its clause (b) speaks of candidates at the same election and not persons who are candidates at other elections. As Mr. <NAME> was a candidate from another constituency he need not have been made a party here. For the above reasons we would allow the appeal but make no order about costs since the election of the appellant is saved by a retrospective law passed after the decision of <ORG>.

<NAME>, J. This appeal arises out of an election petition filed under section 80 of the Representation of the People Act, 1951, hereinafter referred to as the 1951 Act, by <NAME>, a defeated candidate, challenging the election of Smt. <NAME>, before <ORG>. <ORG> (<NAME>, J.) allowed the election petition on the ground that the appellant held an office of profit within the meaning of Art. 191 of the Constitution on the day on which she filed the nomination paper and was thus disqualified for being chosen as a member of <ORG>. This judgment was given on August 12, 1968. An appeal was filed in this Court on August 20, 1968. During the pendency of the appeal, <ORG> Members (Prevention of Disqualification) Act, 1969 (Act No. 5 of 1969) (hereinafter referred to as the impugned Act), was passed, which received the assent of the Governor on April 4, 1969.

The impugned Act inter alia provides : "2. Prevention of disqualification of membership of <ORG>.

(i) It is hereby declared that none of the following offices, in so far as it is an office of profit under <ORG> shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of <ORG>, namely :-

(a) the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to conduct any particular suit, case or other proceeding by or against the State Government, before any court, tribunal, arbitrator or other authority;

(b) the office of a Government Pleader, a Special Government Pleader or Advocate for the State (Government appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government in any particular suit, case or other proceeding by or against the State Government before any court, tribunal, arbitrator or other authority;

We may note another fact on which an argument is sought to; be made by the learned Counsel for the appellant. It was alleged in the election petition that the appellant was a close friend of one <NAME> who was a Minister in the Slate of Rajasthan at the time of the election, who contested elections as a candidate in a constituency different from that of the appellant. <NAME> visited the constituency during the election very frequently and during these visits the appellant accompanied by <NAME> visited several places in the Constituency where.<NAME> in the presence of the appellant offered and promised to get several works done in those areas if the electors were to cast votes for the appellant at' the said election. In spite of these allegations of corrupt practice, <NAME> was not made a party to the petition. The learned Counsel for the appellant, Mr. <NAME>, contends that <ORG> erred in holding that the appellant held an office of profit within the meaning of Art. 191 of the Constitution. In the alternative he contends that the Rajasthan Act No. 5 of 1969 is retrospective and the disqualification if it existed, cannot now be deemed to have existed because of this Act. The last point raised by him is that the petition was not in accordance with law as the respondent, <NAME>, had not impleaded <NAME> as respondent to the petition.

The facts relevant for appreciating the first point are these The appellant was an advocate at all material times. Disputes arose between <ORG> and the State of Rajasthan in connection with some works relating to the Rana Pratain Sagar Dam. These disputes were referred to arbitration. <NAME>, <ORG> Advocate in <ORG> at Jodhpur was appointed by the <ORG> to represent it in these arbitration proceedings. The <ORG> Advocate wanted one more advocate to assist him. On his suggestion, <NAME> advocate was appointed to assist the <ORG> Advocate. As there was a possibility that <NAME> may not be available to help the <ORG> Advocate, the appellant was, on the suggestion of the <ORG> Advocate, appointed to assist him in the ,absence of <NAME>. This. proposal was approved by the Rajasthan Law Minister on March 30, 1965 and on June 26, 1965, and the <ORG> issued the following order :-

"Sub :-Construction of R.P.S. Main Dam Con- tract of <ORG> Arbitration in dispute arising out of-

In pursuance of rule 8 (b) of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause (7) of section 2 of the Code, the Governor is pleased to appoint Smt. <NAME> Advocate, Bikaner, as Special Government Pleader to conduct the above noted case on behalf of the State of Rajasthan along with Shri <NAME>, Government Advocate Jodhpur."

Later, on Sept. 3, 1965, the Government laid down the fees payab le to the appellant. It was stated in the order dated Sept. 3, 1965 that" Smt. <NAME> who has been appointed to assist the Government advocate in the absence of <NAME> will get her share of fee in proportion to the assistance rendered by her out of the daily fee of Rs. 150/- to <NAME>."

As <NAME> was not able to appear in the case, on Nov. 18, 1965 the Governor sanctioned the payment of daily fee of Rs. 1501- to the appellant instead of <NAME>, for days of actual hearing. The appellant appeared from March 27, 1965 to November 28, 1966, but she did not appear from Nov. 29, 1966 to Feb. 25, 1967. She again started appearing in the case from February 26, 1967. The appellant claimed travelling allowance, incidental charges and daily allowance, but the Government decided that the appellant was not entitled to any travelling allowance or daily allowance in addition to the fees. By a notification, <ORG> called upon the electors of the Kolayat Assembly Constituency of <ORG> to elect a member to <ORG> and invited nomination papers for the elections to be held on February 18, 1967. The appellant was declared duly elected by the Returning officer on, February 22, 1967, the appellant having secured 11926 and the respondent having secured 8311 votes.

The relevant portion of Art. 191 reads as follows

191. (1) A person shall be disqualified for being chosen as, and for being, a member of <ORG> or <ORG>

(e) if he is so disqualified by or under any law made by <ORG>.

(2) For the purposes of this article, a person shall not be deemed to hold an office of profit under <ORG> or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the <ORG> or for such State.

It seems to us that <ORG> erred in holding that the appellant held an office. There is no doubt that if her engagement as Special Government Pleader amounted to appointment to an office, it would be an office of profit under <ORG>. The word 'office' has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context. It seems to us that the words 'its holder' occurring in Art. 191 (1 ) (a ), indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that <ORG> has been authorised by Art. 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. In other words, <ORG> is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified. It seems to us that in the context, Justice <NAME>'s definition in <ORG> v. Bater(l) is the appropriate meaning to be applied to the word 'office' in Art. 191 of the Constitution.

Justice <NAME> observed at page 235 "Now it is argued, and to my mind argued most forcibly, that shows that what those who use the (1) 8 Tax Cases 231.

language of the Act of 1842 meant, when they spoke of an office or an employment, was an office or employment which was a subsisting, permanent, substantive position, which had an existence independent from the person who filled it; which went on and was filled in succession by successive holders; and if you merely had a man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He merely was employed to do certain things and that is an end of it; and if there was no office or employment existing in the case, as a thing the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. And I think myself that is sound. I am not going to decide that, because I think I ought not to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office, a substantive thing that existed apart from the holder."

This definition was approved by Lord <NAME> at page 246.

This language was accepted as generally sufficient by Lord <NAME> and Lord <NAME> in- <NAME> v. <NAME> (H.M. Inspector of Taxes) (1). Lord <NAME> observed at page 201 :- "There is no statutory definition of 'office'. Without adopting the sentence as a complete definition, one may treat the following expression of <NAME>, J., in <ORG> v. <NAME>, [1920] 3 K.B., at page 274, adopted by Lord <NAME>son in that case, [1922] 2 A.C., at page 15, as a generally sufficient statement of the meaning of the word : an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filed it, which went on and was filled in succession by successive holders." Lord <NAME> at page 202 observed "The word 'office' is of indefinite content; its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following : A position or place to which less public character. This, I think, rough corresponds with such approaches to a definition as have (1) 24 Tax Cases 190.

been attempted in the authorities, in particular <ORG> v. <NAME>, [1922] 2 A.C. I...... where the legal construction of these words, which had been in Schedule E since 1803 (43 Geo. 111, c. 122, Section 175 ), was discussed."

<CITATION> .(1)-Mitter J. speaking for this Court, quoted with approval the definition of Lord <NAME>. In our view there is no essential difference between the definitions given by Lord <NAME> and Lord <NAME>. <ORG> in the case of <NAME> v. Ross(2), thought that both the noble and learned Lords had accepted the language employed by <NAME> as generally sufficient. In <NAME>'s case(1), this Court was dealing with a panel of lawyers maintained by <ORG> and the lawyers were expected to watch cases. Clause (13) of the terms in that case read as follows :- "You will be expected to watch cases coming up for hearing against this <ORG> in the various courts at <ORG> and give timely intimation of the same to this office. If no instructions regarding any particular case are received by you, you will be expected to appear in the court and obtain an adjournment to save the ex-parte proceedings against this <ORG> in the court. You will be paid Rs. 51- for every such adjournment if you are not entrusted with the conduct of the suit later on."

That case in no way militates against the view which we have taken in this case. That case is more like the case of a standing Counsel disqualified by <ORG>. It is stated in <NAME> [on Elections Vol. [1]-at page 10 :-

"However, in the <NAME> case (121 Journ.

220), in 1866, the return of Mr. <NAME> was avoided on the ground that he held a new office of profit under the <ORG>, within the 24th section. In the scheme submitted to and approved by Her Majesty in Council was inserted the office of standing counsel with a certain yearly payment (in the scheme called 'salary') affixed to it, which Mr. <NAME> received, in addition to the usual fees of counsel. The <ORG> avoided the return. It is urged that there can be no doubt that the Government Pleader holds an office and there is no reason why a person who assists him in the case should also not be treated as a holder of

1) [1969] 2 S.C.R. 422 (2) [1960] 2 All E.R. 238 office, specially as the notification appointed the appellant as Special Government Pleader. We see no force in these conten- tions.

Rule 8B. of Order 27, C.P. Code reads as follows :7-

"In this Order unless otherwise expressly provided 'Government' and 'Government leader' mean respectively-

(a) in relation to any suit by or against <ORG> or against a public officer in the service of that Government, <ORG> and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;

(c) in relation to any suit by, or against a <ORG> <ORG> or against a public officer in the service of a <ORG>, the <ORG> <ORG> and the <ORG> pleader, as defined in Clause 7 of Section 2 or such other pleader as the <ORG> <ORG> may appoint, whether generally or specially, for the purposes of this Order."

This rule defines who shall be deemed to be a Government Pleader for the purpose of the Order. 'Government Pleader' is defined in Sec. 2 of Clause (7) C.P. Code thus-

"(7) 'Government Pleader' includes any officer appointed by <ORG> to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :"

It follows from reading Order 27 rule 8B and Clause (7) of Sec. 2 C.P. Code together that even if a pleader who is acting under the directions of the <ORG> Pleader would be deemed to be a <ORG> Pleader for the purpose of Order 27. Therefore, no particular significance can be attached to the notifica- tion made under rule 8B appointing the appellant as Special <ORG> Pleader. We cannot visualise an office coming into existence, every time a pleader is asked by the <ORG> to appear in a case on its behalf. The notification of his name under rule 8B, does not amount to the. creation of an Office'. Some reliance was also placed on rule 4 of Order 27 C.P. Code, which provides that "The <ORG> Pleader in any Court shall be the agent of the <ORG> for the purpose of receiving processes against the <ORG> issued by such Court."

This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case. Assuming it applies, it only means that processes could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. This does not mean that an Advocate on Record would hold an office under the client.

The learned Counsel for the respondent, Mr. <NAME>, urges that we should keep in view the fact that the object under- lying Art. 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object. It is not necessary to give a wide meaning to the word "office" because if <ORG> thinks that a legal practitioner who is being paid fees in a case by the <ORG> should not be qualified to stand for an election as a Member of <ORG>, it can make that pro- vision under Art. 191 (1) (e) of the Constitution. The case of <CITATION> (1) provides an instance where the <ORG> provided that a paid legal practitioner should not stand in the municipal elections. In view of the above reasons, we must hold that the appellant was not disqualified for election under Art. 191 of the Constitution. But assuming that she held an office of profit, this disqualification has been removed retrospectively by the Rajasthan <ORG> by enacting the impugned Act.

Mr. <NAME>, learned Counsel for the respondent, contends that <ORG> was not competent 'to declare retrospectively' under Art. 191 (1) (a) of the Constitution. It seems to us that there is no force in this contention. It has been held in numerous cases by this Court that the State Legislatures and <ORG> can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of <ORG> the State, and we are unable to imply, in the context, any restriction. Practice of the British <ORG> does not oblige us to place any implied restriction. We notice that the British <ORG> in one case validated the election : [Erskine May's Treatise on the Law, Privileges Proceedings & Usage of <ORG>--Seventeenth (1964) Edition]-

"After the general election of 1945 it was found that the persons elected for the Coatbridge Division of (1) [1955] 1 S.C.R. 1004.

SupCI-9 Lanark and <ORG> were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of attendance at a Tribunal. <ORG> reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springburn Elections (Validation) Bill was introduced to validate the irregular elections [H.C. Deb. (1945-46) 414, c. 564-6]. See also H.C. 3(1945-46); ibid. 71 (1945-46) and ibid.92 (1945-46)."

We have also noticed two earlier instances of retrospective legislation, e.a., The House of Commons (Disqualification) 1813 [Halsbury Statutes of England p. 467] and Sec. 2 of the Re-election of Ministers Act, 1919 (ibid. p. 515). Great t stress was laid on the word 'declared' in Art. 191(1) (a ), but we are unable to imply any limitation on the powers of the <ORG> from this word. Declaration can be made effective as from an earlier date. The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State <ORG>. It is also urged that by enacting the impugned Act the State <ORG> has amended the 1951 Act. We are unable to appreciate this contention. The State <ORG> has exercised its powers under Art. 191 to declare a certain office not to have ever disqualified its holder. The impugned Act does not amend or alter the 1951 Act, in any respect whatsoever. It is said that under the 1951 Act as it existed before the impugned Act was passed, the appellant was not qualified to be chosen for this particular election. By enacting the impugned Act the appellant's disqualification has been removed and the 1951 Act is, so to say, made to speak with another voice. But that is what the State <ORG> is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951-Act may be different but this is because the facts on which it operates have by valid law been given a different garb.

It is further urged that the-impugned Act violates Art. 14 of the Constitution because <ORG> might have appointed Government Pleaders under rule 8B of Order 27 and the impugned Act nowhere mentions the alleged offices held by them. No material has been placed to show that any such offices exist. We cannot, therefore, entertain this point. In view of the above reasons We are of the opinion that the impugned Act is valid and removes the disqualification if it existed before.

There is force in the third point raised by the learned counsel for the appellant. Section 82 of the Representation of the People Act, 1 of 1951, reads as follows "81. A petitioner shall join as respondents to his petition-

(a) where the petitioner, in addition to claiming a ,declaration that the election of all or any of the returned candidates is void, claims a further declaration that be himself or any other- candidate has been duly elected. all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

In this context the words 'any other candidate' plainly mean a candidate in the election for the constituency which is the subject matter of the petition.

In the result the appeal is allowed, the judgment of <ORG> set aside and the petition dismissed. In the circumstances of the case the parties will bear their own costs throughout.

V.P.S. Appeal allowed.


JUDGMENT <NAME>, J.

1. This reference arises out of the estate duty proceedings consequent on the death of one S. M. M. Muthukaruppan Chettiar on October 19, 1961. He was a partner in a firm of money-lenders in Malaya called "<ORG>". He made gifts during his lifetime as follows:

Date of original gift Amount out of the gifted property included u/s. 10 Name of donee Relationship Date of deed evidencing thetransaction     6-4-1938 Malayan Dollars 2,059 <NAME> Married daughter 7-4-1955 12-4-1950 7,405 <NAME>.

7-4-1955 13-4-1954 3,000 S. M. M. Dharma Kanakku (Trust Account) Charity 29-3-1955 10-6-1954 15,000 Krishnan Grandson 7-4-1955

-do.

15,000 <ORG> do.

do.

do.

15,000 Venkatachalam do.

do.

do.

15,000 <ORG> do.

do.

6-2-1939 17,587 S. M. M. Subramanian Chettiar Son 7-4-1955 10-6-1954 6,250 96,301

2. It is not clear as to when the deceased <NAME> became a partner in <ORG>. From the table given above it would be seen that one of the gifts is on April 6, 1938, another on February 6, 1939, a third one on April 12, 1950, and a fourth one on April 13, 1954. The firm was reconstituted with effect from 10th June, 1954. On that date his son joined the firm as a partner. Prior to the son joining the firm the deceased had 12 1/2% share in the firm. As a result of the son joining the firm, his share was reduced to 6 1/4 per cent, and the son got 6 1/4 per cent, in the firm. On that day four sums of 15,000 Malayan dollars were gifted to the four grandsons, as mentioned above, and another sum of 6,250 dollars was gifted to his son, who became a partner.

3. With reference to <NAME>, who is the married daughter, and the gift in whose favour is referred to as item No. 1 in the above table, the position was as follows :

On 17th December, 1937, a house was purchased in No. 33, Jalan Deva Road, Sungaipattani, Malaya, for $ 4,941. The relevant consideration was debited to her account in the books of <ORG>, Sungaipattani, Malaya. She received as gift on 6th April, 1938, a sum of 7,000 dollars as a result of which her account stood with a credit balance of $ 2,059. It is this amount which has been included in the assessment. It may be mentioned here that on 7th April, 1955, the deceased executed a deed of declaration saying that he gifted to her on several dates certain sums which had accumulated to $ 21,971.94 with interest, etc., and that she and her heirs were the absolute and free owners of the said sums. The deceased declared that he had no interest whatsoever in the said sum. All the other transactions fall into the same pattern, i.e., entries in books followed by the deed evidencing the transactions as shown in column (5) above.

4. To the gifted amounts, as lying in deposit with the aforesaid firm, were added interest and other receipts from time to time and there were also drawings for various purposes by the respective donees. We are concerned here with the gifted amounts totalling $ 96,301.

5. On the above facts, the Assistant Controller of Estate Duty considered the applicability of Section 10 of the Estate Duty Act. He took a sum of $ 1,03,708 as the amount with respect to which Section 10 was considered applicable. After referring to the gifts, he held that the donees invested the monies either wholly or in part in the firm of Messrs. <NAME>, Sungaipattani, Malaya, in which the deceased was a partner till his death so that the investments by the donees, to the extent they had originated from the gifts referred to above, fell within the mischief of Section 10 of the Estate Duty Act. He referred in this connection to the decision of <ORG> in <NAME> v. Commissioner of Stamp Duties,  AC 435 ;  37 ITR (ED) 89 ; 3 EDC 915 (PC).

6. The Appellate Controller reduced the addition to $ 96,301 as set out in the table given earlier here. He confirmed the applicability of Section 10 to the extent of the said amount. On further appeal, <ORG> held as follows :

"...... by reason of the donor being a partner in the firm in which the amounts gifted by him to the donees are deposited or invested, it cannot be said that the possession and enjoyment of the property taken under gift was not retained to the entire exclusion of the donor ...... the enjoyment contemplated under Section 10 of the Estate Duty Act, 1953, is enjoyment of the rights of the donees, and the enjoyment of the money after it was deposited is different from the enjoyment by the firm of the rights of the donees. As far as the donees are concerned, they did not share any of their right--right to income, right to assign, right to pledge--with the deceased partner of the firm. Moreover, a partner in the firm cannot be said to be the owner of any specific share in any partnership property and in that view he can neither transfer nor be the transferee of such specific share in the property. The deceased had no right or interest in and, therefore, could not be said to have enjoyed the deposit made by the donees in a firm in which he was a partner."

7. In coming to this conclusion it cited several decisions and observed that the matter had been dealt with by them in another order dated 31st October, 1967. The <ORG> deleted the said sum of $ 96,301 from the assessment on the ground that Section 10 did not apply.

8. On the above facts, at the instance of the Controller of Estate Duty, the following question of law has been referred :

"Whether, on the facts and in the circumstances of the case, the <ORG> was right in law in holding that the gifted property of $ 96,301 was not hit by the provisions of Section 10 of the Estate Duty Act, 1953 ?"

9. On behalf of the Controller, Mr. <NAME>, learned counsel, submitted that in cases where Section 10 of the Estate Duty Act has to be applied, one has to first ascertain the subject-matter of the gift and find out whether the donor has been entirely excluded. In his submission, this is a case where there was a current account in favour of the deceased in the books of <ORG> which had been debited and that the donees were operating the said account. He referred to the finding of the <ORG> that the gifts were not" conditioned upon the retention of the moneys of the firm", that there was no documentary evidence to show the transfer of any actionable claim and that, in the absence of any such documentary evidence, it would only be a case of cash gift. His attempt was to show that where there was no transfer of an actionable claim as such in the manner contemplated by Section 130 of the Transfer of Property Act, and that the gift was only of cash, and that the subsequent investment of the amounts in the firm in which the deceased was a partner, brought the case within the scope of Section 10 of the Estate Duty Act.

10. For the taxpayer it was pointed out that there was no current account, that this was a case of a transfer of an actionable claim and that for the purpose of finding out whether there was any evidence in writing at the time of the transfer, the matter might, if necessary, be sent back to the <ORG>. The learned counsel also attempted to show that the documents of 7th April, 1975, referred to already, were sufficient to support the case of a transfer of an actionable claim.

11. The document dated 7th April, 1955, is not contemporaneous with any of the transactions set out in the table given already. The declaration is long after the event and was obviously intended for some other purpose. We are, therefore, unable to proceed on the basis that the declarations of 7th April, 1955, in all cases except one, in any way affected the present position. We may, however, mention that the one document, namely, the one dated 29th March, 1955, in the case of a trust account is item No. 3 in the table. With reference to this trust, there was declaration made on 29th March, 1955. Even that declaration related to what happened earlier on 27th July, 1954, and that was by setting apart monies for performance of several charities. Thus, with reference to none of the transactions, is there any contemporaneous document in writing as contemplated by Section 130 of the Transfer of Property Act, to which any reference has been made before us. As the matter has been examined by the estate duty authorities and the <ORG> at a time when they did not have the benefit of several decisions which were rendered subsequently, it is necessary to refer to the decisions so as to find out whether the property gifted was retained by the donee to the entire exclusion of the donor, which is the only point in dispute here.

12. The law on this point has been laid down by <ORG> in two decisions which were appeals from this court and where the decisions of this court were confirmed. <CITATION> ,  73 ITR 166, 169 (Mad.) the facts were as follows :

One <NAME> was a partner of a firm called "<ORG>" at Coimbatore. He asked the firm on 30th March, 1953, to transfer from his loan account with it a sum of Rs. 1,00,000 to the credit of each of his five sons in equal shares of Rs. 20,000 by opening separate accounts in their individual names in the firm's books. The assessability of this sum of Rs. 1,00,000 under Section 10 of the Estate Duty Act was the subject of dispute which reached this court. He had, in August 1953, transferred an immovable property to his two sons. The assessability of the value of that property was also the subject of dispute, but that is not relevant for our present purpose. With regard to the sum of Rs. 1,00,000 this court observed :

"The donor had lent moneys to the firm and from out of the credit in his favour with the firm, he directed it in writing signed by him to transfer a sum of Rs. 20,000 to each of his sons by way of a gift."

13. After pointing out that this was an actionable claim and that the donor had directed the firm in effect to transfer part of his actionable claim in favour of his sons, and that the requirements of Section 130 of the Transfer of Property Act had been complied with, it was held :

"Once we hold, as we do, that the subject-matter of the gift was not the sum of Rs. 1 lakh as money but an actionable claim of that value, it follows that the donor was completely excluded from it."

14. This decision was confirmed by <ORG> on appeal in <CITATION> main discussion in <ORG>'s judgment is with reference to the property that was transferred by the deceased in favour of his two sons under the document of August, 1953, and the same conclusion was applied with reference to the aforesaid amount of Rs. 1,00,000.

15. The other decision of this court is reported in <CITATION> , . In that case the deceased was the partner of a firm of money-lenders. He transferred by book adjustment in the accounts of the firm two sums totaling Rs. 1,29,924 to his sons and daughter apparently out of the profits earned and lying to his credit in the firm. With reference to the assessability of this sum under Section 10 of the Act, this court observed:

"As the funds belonged to the donor, who was a partner, their repayment would be subject to the provisions of the partnership law. It is in this background we have to view what precisely was the subject-matter of the gift; was it, the two sums, free of any conditions or liabilities or subject to them ? We are inclined to think that, on a consideration of the entire facts, the book entries of the two amounts were made in effecting the transfer, the donor being fully alive to the fact that there would be no handing over of those two sums in cash to the donees and they would be available for the continued use of the partnership in the business and in that contingency, therefore, the amounts, while being used in the firm, would be looked after, managed and controlled by the father in his capacity as the managing partner."

16. The decisions of <ORG> in <NAME> v. Commissioner of Stamp Duties and <NAME> v. Commissioner of Stamp Duties, [1934] AC 61; 2 EDC 462 (PC) were discussed and it was found that the case before this court came within the scope of the principle in <NAME>'s case. This decision was taken on appeal to <ORG> and the decision of <ORG> is reported in [1973] 91 I.T.R. 1 ( <CITATION> ). <ORG> held that the question of law was completely covered by the decision in the case of <NAME>.

17. We may refer to two other cases to which one of us was a party. <CITATION> ,  86 ITR 533 (Mad) the deceased, who was a partner in a firm carrying on business as bankers, transferred a sum of Rs. 1,00,000 each to the three minor grandsons of his deceased brother. In each case he drew a cheque against his account with the firm. The cheque was in favour of the firm itself. The account of the deceased was debited with the sum of Rs. 3,00,000 and simultaneously the three amounts of Rs. 1,00,000 each were credited to the accounts of the respective minors. One of the contentions taken before this court was that a partner was not a creditor of the firm in which he was a partner and that there was no jural relationship of a creditor and debtor between the partner and the firm. A decision of <ORG> in <CITATION> ,  64 ITR 373 (Ker) was referred to in this context. This court did not agree with the decision of <ORG> and after referring to passages in Lindley on Partnership and to a decision in <CITATION> ,  ILR 32 Mad 76 it was pointed out that unless great injustice would be caused, courts would not refuse to recognize a claim for payment of the amount advanced by a partner to the firm and that even if no partial accounting could be ordered, the creditor-partner could file a suit for dissolution and general accounting and claim to be paid before the division of the assets as provided under Section 48 of the Partnership Act. It was pointed out that, in either case, viz., of partial accounting or a suit for dissolution, a partner had a right of an action. With reference to this aspect as to whether there could be a relationship of creditor and debtor between a firm and a partner, we may also refer to a Full Bench decision of five judges reported in <CITATION> , AIR 1928 Mad 923. In that case a distinction was made between the capital contributed by a partner and a separate loan advanced by the partner to the firm, and it was held that the interest paid to the partner was deductible in the assessment of the firm. That case arose prior to the introduction of Section I0(4)(b) into the Act of 1922.

18. In <NAME> case the further question was whether the transfer had complied with the provisions of Section 130 of the Transfer of Property Act. It was held that, as the transaction had been effected by cheques, Section 137 of the Transfer of Property Act took the case out of Section 130 of that Act. It was, therefore, held that Section 10 was not applicable on the facts there.

19. The only other decision of this court to which reference need be made is not yet reported and it was rendered in T.C. No. 292 of 1968 ( <CITATION> ,  98 ITR; 660 (Mad)). In that case the question related to a sum of Rs. 85,000. This sum was the total of two sums, viz., Rs. 60,000 and Rs. 25,000. As regards the gifts covered by the sum of Rs. 60,000 it was found that the deceased gifted Rs. 15,000 each to his four sons on 1st April, 1955. They were first invested in a proprietory concern and later withdrawn and invested in a firm in which the deceased was a partner. As the sum of Rs. 60,000 was gifted in cash by the deceased and as it was subsequently invested in a firm in which the deceased was a partner, this court held that Section 10 was applicable to it. As regards the sum of Rs. 25,000 the contention before <ORG> was that the gifts were effected by making credit entries in favour of the assessee in the partnership accounts by making debit entries against the deceased partner. The further contention, with reference to the said sum, was that it was a gift "shorn of the rights of the partnership to use the same". Alternatively, it was contended that it should be treated as a transfer of "actionable claim". It was pointed out in the judgment that if the gift was made only by book entries in the firm's accounts, then, in view of the decision of <ORG> in <NAME> case and under the principle laid down in <NAME>'s case, the gift had to be taken as shorn of the rights of the partnership to use the monies, in which case Section 10 could not stand attracted; but if it was a case of gift of cash, then Section 10 would apply. The <ORG> was directed to determine the factual question as regards the sum of Rs. 25,000 in consequential proceedings to be taken under Section 64(6) of the Estate Duty Act.

20. We may also point out that <ORG> in <CITATION> ,  98 ITR 610 (Guj) had also to consider the scope of the applicability of Section 10 and have considered it in the light of the decision of <ORG> in <NAME> case. With reference to the sum credited to donees by book entries, <ORG> applied the decision of <NAME> case and held that Section 10 did not apply. With reference to the cases where the amounts were gifted outright by the deceased in favour of the donees who actually received the amounts gifted and thereafter deposited the amounts with the firm in which the deceased was a partner, it was found that the subject-matter of the gift was a sum of money which was given without reservation or qualification, and that, therefore, the gift was not liable to be taken as "shorn of the rights of the partnership".

21. The above discussion would go to show that we have to first ascertain the subject-matter of the gift. We have to see whether it was merely an existing balance in the shape of an actionable claim in which event the provisions of the Transfer of Property Act should have been adhered to. Then the transfer would be subject to the rights of the partnership. If, however, the amounts were gifted in cash, then, there will be nothing to show that the gifts are subject to any particular condition of user in the partnership in which the deceased was a partner. The question as to whether the relevant debits were made in the account of the deceased at the time when he was a partner so that what he had could be treated as an "actionable claim" has not been specifically gone into. If the debit was made in the books of the individual there would be no question of any "actionable claim". Therefore, the <ORG> would have first to ascertain in the proceedings to follow under Section 64(6) the nature of or the subject-matter of the gift to see if it is an "actionable claim" or if it is a gift of cash. If it is a gift of cash, no further consideration is likely to arise as the authorities are clear on the point that the amount is liable to be taxed by applying Section 10 . If it was a transfer of "actionable claim", Section 10 would not apply. This question has to be considered as at the point of time when the gifts were made.

22. There is one other aspect which has to be examined as contended by the learned counsel for the Controller of Estate Duty. If it was a current account, then the contention of the learned counsel was that it could not be treated as an "actionable claim". "Actionable claim" has been defined in Section 3 of the Transfer of Property Act as follows :

" 'Actionable claim ' means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent."

23. The "actionable claim" contemplated in the above definition is what is known to English law as a "chose in action". A "chose" is a chattel personal and is either in possession or in action. "Choses in possession" are movable chattels such as furniture, horses and generally all goods and merchandise. A "chose in action" is a right of proceeding in a court of law to procure the payment of a sum of money (example, a bill of exchange, a policy of insurance, an annuity or a debt)

24. An undivided share in a partnership is a chose in action Ex parte Fletcher : In re Bainbridge, [1878] 8 Ch D 218 (Ch D). As there were difficulties envisaged in applying the English law, the Indian legislature enacted the definition of an actionable claim as given above. In <NAME>'s Transfer of Property Act (sixth edition), at page 807, it is observed :

"A partner's right to sue for an account of a dissolved partnership is an actionable claim, being a beneficial interest in movable property not in possession."

25. In the case of a current account, it is a matter of agreement between the partnership and the partners that the partner is free to withdraw the amount. It is not, therefore, possible to say that it is a mere actionable claim. It is a debt due which was recognised by the partners as payable on demand and its recovery could be enforced against the firm without recourse to a suit for dissolution--<ORG> v. <NAME>. The current account would thus stand out of the category of actionable claims. Any transfer of money from that account would be equivalent to gift of cash, as the donee will be free to deal with it in any manner and at any time he liked. In other words, the donor was not inhibited from demanding and getting back the amount during the currency of the partnership and the donee would have the same right. In such a case, there would be no condition applicable to the amount subject to which alone the transfer is effected. The transfer would thus be unconditional. We would, therefore, hold that, if the amount was a transfer from a current account as such, then it would stand in a distinct category and the applicability of Section 10 would follow. If, however, the transfer was from the capital account or loan account or any other general account to which profits are credited, then Section 10 cannot be applied. We would answer the question as indicated above. In passing the orders under Section 64(6) , the <ORG> would be free to go into all the facts and consider the matter as if it was hearing the appeal by itself. We have in T. C. No. 107 of 1969 ( <CITATION> ,  99 IJR 287 (Mad)) judgment in which was delivered on 20th November, 1974, indicated the scope of the powers of the <ORG> in a matter which goes back to it as a result of the reference. We have held that the powers of the <ORG> in such a matter are as ample as they were at the time when it dealt with an appeal for the first time. We are making these observations only to avoid any misapprehension about the scope of the enquiry which is to be conducted hereafter.

26. As neither party has succeeded, there will be no order as to costs.