JUDGMENT Leach, <NAME>

1. These appeals and civil revision petitions arise out of proceedings instituted in <ORG> of Devakottah, with reference to the estate of one RM.AR.AR.RM. <NAME>, who died on 23rd February 1938. Appeals Nos. 321 of 1940, 3,104 and 239 of 1941 are from a preliminary decree passed by the Subordinate Judge in a suit for the administration of the estate. The petitions ask for the revision of orders passed in the suit. C. M. A. No. 282 of 1941 is against an order granting probate of a will executed by Arunachalam on 8th January 1938. These matters have been heard together and can be dealt with conveniently in one judgment.

2. The testator, who was a member of the Nattukottai Chettiar community was a very wealthy man. His personal assets have been estimated to be worth Rs. 39,66,100. He had assets in British India, Burma, Federated Malay States, Ceylon and French Cochin China. In addition, he was the trustee of numerous charities, the endowments of which are said to aggregate in value Rs. 24,00,000. He married three times. By his first wife, who predeceased him, he had a son and three daughters. The son also predeceased him. The daughters are alive and have married. His second and third wives survived him. There was no issue of the second marriage and by the third wife he had a daughter, who died during the pendency of the administration suit. His son married <NAME>, the plaintiff in the administration suit. There was no issue of this marriage.

3. By his will the testator nominated as his executors <NAME> (a cousin) and CT.L.RM. Arunachalam Chettiar (a son-in-law). He directed that his widows should each adopt a son and that the plaintiff should do likewise. Only boys approved of by the executors were to be adopted. The testator directed that certain legacies should be paid. The legacies were substantial in amount but they absorbed comparatively little of the estate. He indicated that the trusts should devolve upon his heirs, and after making other provisions to which reference is not necessary he gave these directions:

As soon as each of the adopted sons becomes a major as stated above they shall also manage the properties along with the executors.

The matters relating to charity and trust shall be kept in common and managed and as soon as all the sons become majors, the estate and the properties relating to charity and trust should be handed oven to them. They (the adopted sons) shall co-operate with each other and maintain and manage the estate in common to the extent that it is possible for them to maintain and manage it in common. At the time when they wish that a division should be effected, they may do so.

The will contains no directions with regard to the disposal of the residue of his personal estate. Neither of the widows has adopted a son, nor has his daughter-in-law.

4. On 11th July 1938 the daughter-in-law filed the suit for the administration of the estate and the partition of the assets among the heirs. The senior widow was made defendant 1, the junior widow defendant 2 and the two executors defendants 3 and 4 respectively. The plaintiff averred that the will was invalid because the testator was not in a sound state of. mind when he signed it and that the executors had exercised undue influence on him. Defendant 3 was an undischarged insolvent and it was said that defendant 4 was in indigent circumstances. She alleged that it would be disastrous to leave them in the management of the estate. She claimed that by virtue of the provisions of the Hindu Women's Rights to Property Act , 1937, she was entitled to a half share in the whole of her father-in-law's estate and defendants l and 2 to the other half. In the event of the Court holding the will to be valid there was, she said, still an intestacy with regard to the bulk of the estate. Further she claimed that sums constituting her own stridhanam and that of her deceased mother-in-law to which she said she was also entitled had been deposited with the testator and asked that these monies should be paid over to her.

5. While supporting the plaintiff in her attack on the will and the management of the estate by the executors defendant 1 averred that a fortnight before his death the deceased had orally authorised her to adopt a son to him; that even if the will were valid the direction that the executors should approve of the boy to be adopted was merely advisory, not mandatory, that the directions given to the junior widow and to the daughter-in-law to adopt sons were invalid; that the Hindu Women's Rights to Property Act , 1937 and the amending Act of 1938 (Act 11 of 1938) were ultra vires <ORG>; and that she, as the senior widow was entitled to inherit the full estate and have the management of the trust properties. In her written statement defendant 2 supported the will, but averred that in the event of the Court holding it to be invalid she and defendant l were entitled to share the inheritance. She denied any right in the plaintiff for the same reason as defendant 1 had advanced, namely, that the Hindu Women's Rights to Property Act , 1937 and the amending Act of 1938 were ultra vires <ORG>. Inferentially she denied that there was any intestacy. Defendants 3 and 4 maintained that the testator was in a sound state of mind when he executed the will and denied that they had exerted any undue influence. They averred that the will was valid and that it disposed of the whole of the testator's estate. They claimed that they were bound to administer the estate and accumulate the income for the benefit of the boys to be adopted in accordance with the directions given in the will. The pleadings contain other averments, but it is not necessary for the purpose of deciding the questions which arise in the appeals and petitions now under consideration to refer to them.

6. On 12th July 1938, the day after the institution of the administration suit, the plaintiff applied for the appointment of a receiver for the preservation and management of the estate until the disposal of the suit. This application was opposed by the executors, but it was granted by the Subordinate Judge in an order dated 18th August 1938. He appointed two receivers, both of whom were advocates practising in his <ORG>.

7. On 4th August 1937 the executors applied for probate of the will. The grant was opposed by the plaintiff, defendant l and two of the daughters of the testator by his first wife. The third daughter of the testator by his first wife is the wife of defendant 4. She supported the grant as did <NAME>, a sister of the deceased; The application for probate was heard with the administration suit and was dealt with in a judgment dated 26th October 1940, when judgment was also delivered in the administration suit. In his judgment in the probate proceedings the Subordinate Judge held that the allegations that the testator was not of a sound disposing state of mind and that the executors had exerted undue influence on him had not been proved. C. M. A. No. 282 of 1941 was filed by the plaintiff with the object of obtaining the reversal of this decision. In this Court all the parties have, however, accepted the validity of the will, although they are not in agreement as to the effect of some of its provisions. As the will is now accepted c. M. A. NO. 282 of 1941 will be dismissed and the appeals from the preliminary decree passed in the administration suit proceeded with on the basis that the will was executed by the testator when in a sound disposing state of mind and without being subjected to any undue influence.

8. The finding of the Subordinate Judge in the administration suit, so far as they are relevant, to the appeals were (i) the testator had died intestate except with regard to the legacies; (ii) the residue of the estate devolved upon his heirs according to his personal law; (iii) the testator had no power to give, directions with regard to the management of the trust properties, which also devolved upon his heirs; (iv) the Hindu Women's Rights to Property Act , 1937, was intra vires the <ORG>; (v) by reason of that Act the plaintiff was an heir and was entitled to a half of the residue of the personal estate of the deceased; (vi) the testator's widows were entitled to the other half in equal shares; (vii) the Hindu Women's Rights to Property Act , 1937, did not make the plaintiff an heir so far as the trust properties were concerned; (viii) the testator's widows alone could claim the right to possession and management of the trust properties; (ix) the estate was of such magnitude that it would be dangerous to entrust the assets to the plaintiff and defendants l and 2 without safeguards and it was desirable that the properties should be left in charge of an officer or officers of the <ORG> until safeguards had been furnished; and (x) the receivers already appointed should continue to act pending the passing of the final decree.

9. Appeal No. 321 of 1940 has been filed by the plaintiff; Appeal No. 3 of 1941 by defendant l; Appeal No. 104 of 1941 by defendants 3 and 4 and Appeal No. 239 of 1941 by defendant 2. The plaintiff says that the Subordinate Judge erred in not giving her a share in the management of the trust properties, that he erred in directing that the estate shall remain in the possession of an officer or officers of the <ORG> until the heirs entitled to a partition of the assets have furnished safeguards and that he had omitted to deal with her claim to the stridhanam moneys deposited with the testator. In this <ORG> defendants 1 and 2 joined hands. They say that the Subordinate Judge's decision that the Hindu Women's Rights to Property Act , 1937, is intra vires is erroneous and that in any event the plaintiff is not entitled to a share in any of the properties left by the deceased outside British India. The complaint of defendants 3 and 4 is that the Subordinate Judge did not leave them in the management of the trust properties. Mr. <NAME>, who appeared on their behalf, said that they had no objection to the personal estate of the testator being administered by the <ORG> in the administration suit, but that his clients were interested in the proper management of the trusts and they claimed a right to be associated in the management.

10. It is quite clear that the testator died intestate with regard to the bulk of his estate. In fact the appeals have proceeded on that basis. At present the <ORG> is not in a position to decide on whom devolve the immovable properties left by the deceased outside British India because succession here will, it is agreed, be determined by the lex loci rei sita and there has been no inquiry into the law of succession in the various foreign countries. In these circumstances the parties desire that <ORG> shall, in the course of the administration of the estate, investigate this matter and in the final decree direct on whom the foreign immovables are to devolve. It has also been agreed that the plaintiff's claim to the moneys described by her as stridhanam shall be investigated by <ORG> in the course of the administration and likewise dealt with in the final decree. Further, it has been accepted that the Subordinate Judge erred in directing the estate to remain in the hands of an officer or officers of the <ORG> until the heirs have provided safeguards against waste. The heirs of the testator are entitled to a division of his personal estate without furnishing such safeguards. A female heir only takes a limited interest, but she is entitled as of right to be placed in possession of her share. Should it transpire that she is dissipating moneys which have come to her and is thereby defeating the reversioner he can ask the <ORG> to insist on security being furnished, but such a position could only arise after partition. An unlawful alienation of immovable property does not affect the reversioner's rights. He is entitled to gain possession of it when the estate falls in. The same principles apply to the trust properties. Either the heirs or the executors are entitled to be placed in possession of them as soon as it is conveniently possible. Therefore the directions given by the Subordinate Judge in this connexion must be set aside.

11. The questions which remain for decision in the appeals from the preliminary decree passed in the administration suit are these : (1) Is the Hindu Women's Rights to Property Act , 1937, intra vires the <ORG>? (2) If it is, what rights does it confer upon the plaintiff? and (3) Who are entitled to possession and management of the trust properties?

12. After the Subordinate Judge had delivered his judgment <ORG> considered the validity of the Hindu Women's Rights to Property Act , 1937, on a reference made to it by the Governor-General in <ORG>, In re Hindu Women's Bights to Property Act , 1937 ('41) 28 A.I.R. 1941 F.C. 72, and held that its provisions are intra vires the <ORG> except in so far as they affect agricultural lands in the Governor's Provinces. To that extent the Act is unlawful, and therefore persons who are constituted heirs by the Act are given no share in agricultural holdings left by a deceased Hindu in a Governor's Province. Sub-section (1) of Section 3 as it originally stood was in these words:

When a Hindu governed by <ORG> dies intestate his property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property that separate property shall, subject to the provisions of Sub-section (3) devolve upon Ms widow along with his lineal descendants, if any, in like manner as it devolves upon a son;

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

Sub-section (3) states that any interest devolving on a Hindu widow under the provisions of the section shall be the limited interest known as a Hindu Women's estate, provided, of course, that she shall have the same right of claiming partition as a male owner. By Act 11 of 1938, para. l of Sub-section (1) was amended. When there is more than one widow, the widows together are now entitled, subject to the provisions of Sub-section (3) to the same share as a son. The amending Act also inserted a new section, Section 5 , which states that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

13. It is manifest that this Legislation has made the plaintiff an heir to the separate property left by the deceased in British India, exclusive of course, of the agricultural lands. It has, however, been contended on behalf of defendants 1 and 2 that the personal estate left by the testator was not separate property within the meaning of the Act because the testator was joint with his father and what he died possessed of was property which had come to him as the surviving member of the joint family. It is said that the Act only applies to property which a person has acquired otherwise than by survivorship. We are not prepared to interpret the Act in this restricted sense. It was placed on the statute book in order to give a widow and a predeceased son's widow a share in the estate of the deceased over which he had a disposing power. In our opinion the insertion of Section 5 puts this beyond doubt. The testator had full disposing power over all the properties of which he died possessed except with regard to the trust properties and Mr. <NAME> who has appeared for defendant l and whose arguments have been adopted by Mr. <NAME> Iyengar on behalf of defendant 2, has conceded this. We hold that the personal estate of the testator constituted his separate property within the meaning of the Act.

14. With regard to the trust properties the position is different. In no sense can they be regarded as the separate property of the testator. <CITATION> ('43) 30 A.I.R. 1943 P.C. 89 <ORG> held that Sebaiti is property, it is not a catena of successive life estates, but it is heritable-heritable property which in the first instance is vested in the founder. Sebaiti is trust property and the various trust properties held by the deceased constituted heritable estates because in respect of all of them succession to the trusteeships passed to his heirs. The plaintiff cannot claim to be an heir to the trust properties under her personal law. She can only come in if the statute allows her to do so and it does not. It only applies to property which belonged to deceased person in his own right. The Subordinate Judge came to the correct decision when he held that the only heirs of the testator, so far as the trust properties are concerned, are the testator's widows.

15. It has now to be considered whether the Hindu Women's Eights to Property Act , 1937, gives the plaintiff a share in the moveable properties which were held by the testator in foreign countries because here the lex loci rei sita does not apply. Succession is governed by the law of domicile of the deceased/Defendants 1 and 2 contend that the Hindu Women's Rights to Property Act does not give the plaintiff a share in the moveable properties held abroad, and we consider that the contention must be accepted. The presumption is that a <ORG> deals with matters only within its own jurisdiction. This principle was fully discussed by Lord <NAME> in <NAME> v. <NAME> (1890) 25 Q.B.D. 129. The respondent in that case had insured his life with <ORG>, which had been incorporated by a Special Act of the <ORG> of the State of New York. He claimed to be entitled to deduct the amount of the premium in calculating his income liable for English Income-tax. The surveyor of taxes contended that the deduction was only allowable by the Income-tax Act then in force in respect of insurances effected with companies registered in the United Kingdom, and this contention was upheld. Lord <NAME> said:

What is the rule of construction which ought to be applied to such an enactment, standing alone? It seems to me that, unless <ORG> expressly declares otherwise in which case, even if it should go beyond its rights as regards the comity of nations, the <ORG> of this country must obey the enactment, the proper construction to be put on general words used in an English Act of <ORG> is, that <ORG> was dealing only with such persons or things as are within the general words and also within its proper jurisdiction and that we ought to assume that <ORG> (unless it expressly declares otherwise) when it uses general words is only dealing with persons or things over which it has properly jurisdiction. It has been argued that that is so only when <ORG> is regulating the person or thing which is mentioned in the general words. But it seems to me that our <ORG> ought not to deal in any way, either by regulation or otherwise, directly or indirectly, with any foreign person or thing which is outside its jurisdiction, and, unless it does so in express terms so clear that their meaning is beyond doubt, the <ORG> ought always to construe general words as applying only to persons or things which will answer the description and which are also within the jurisdiction of <ORG>.

In this case there is more than a presumption that in placing the Hindu Women's Eights to Property Act on the statute book <ORG> intended to legislate only with regard to properties within its jurisdiction. Sub-section (2) of S. l, as it originally stood stated that the Act extended to the whole of British India, including British Baluchistan and the Sonthal Parganas, but excluding Burma. The Act received the assent of the Governor-General on 14th April 1937; but when it was passed by the <ORG> Burma was a part of British India. The separation only took place on 1st April 1937. The very fact that Burma was excluded shows that the <ORG> intended the Act to apply only to property within British India. The words "including British Baluchistan and the Sonthal Parganas but excluding Burma" were taken out of the sub-section by the Repealing and amending Act of 1940 (Act 32 of 1940). By this time it was not necessary to have a provision expressly excluding Burma because Burma was no longer a part of British India. There is here very strong indication that the Act was never intended to apply to any kind of property situate outside British India.

16. It follows that in our judgment the plaintiff is entitled to a half share of the personal estate of the deceased lying within British India, exclusive of agricultural lands, but that she is not entitled to any share in the moveable properties outside British India. Whether she is entitled to any share in the immovable properties abroad will depend upon the result of the investigation to be held with regard to the laws of succession in the various foreign countries.

17. The last question relates to the rights to possession of the trust properties and this is the only question with which the executors are now concerned. They maintain that the will entitles them to remain in possession of the properties until an adopted son has attained the age of majority. We have already indicated that in no case had the testator the right to appoint his successor. Some of the trusts had been created by himself and others by his father, but in no instance was the holder of the office of trustee for the time being empowered to nominate his successor. In respect of some of the trusts the testator shared the duties of trustee with others. Three of the deeds of trust have been exhibited, and marked as Exs. 3, 4 and 5. Exhibit 3 is a declaration of trust signed by the testator on 23rd November 1924. He created himself the trustee for life and directed that his heirs and after their lives their heirs should be the trustees "hereditarily". Exhibit 4 is dated 31st July 1926. It would appear to apply to trusts created before the testator's time. It states that, for the proper conduct of the above charities we shall during our lifetime be the trustees and then our heirs, and, after their lifetime their heirs shall be trustees, hereditarily and manage the same maintaining proper account therefor.

Exhibit 5 is a deed of a similar nature and contains the same provision.

18. As in England the law in this country is that where a trustee is the sole or surviving trustee the estate descends to his personal representative unless the deed of foundation otherwise provides. Therefore all the trusts of which the testator was the trustee devolved upon his personal representatives. The executors say that they are his personal representatives by reason of S, 211, Indian Succession Act , 1925, and this is true, but this does not mean that they are entitled in law to retain possession of the trust properties. These properties devolve on the testator's heirs, who are here his widows and the duty of the executors, had receivers not been appointed, would have been to deliver them to the widows. The testator had no power to direct that the executors should remain in possession until such time as his directions with regard to adoption were fulfilled. In <NAME> v. <NAME> See(38) 47 M.L.W. 217 this Court held that a widow could not be compelled to follow her husband's wishes in the matter of adopting a son, however strong the directions of her husband might have been and the could not be deprived of her widow's interest in his property because she might at some ... later stage decide to follow his directions. In this case there has been no adoption and for the time being the testator's directions in that respect must be ignored, even if they are all valid as to which we express no opinion.

19. We will now deal with the two civil revision petitions, C. R. P. No. 814 of 1941 has been filed by defendant 2. The will provided for the payment of the sum of Rs. 75,000 to each of the testator's daughters. In the books of the deceased the sum of Rs. 1004-1-0 stands to the credit of his deceased daughter by defendant 2, and the sum of Rs. 2300 to the credit of defendant 2 herself. Defendant 2 desired to file an additional written statement claiming that the Rs. 75,000, the Rs. 1004-1-0 and the Rs. 2300 should be paid over to her. The Subordinate Judge dismissed the application because he considered that it had been filed too late and the will itself was in dispute. All parties are now agreed that defendant 2 should have been allowed to file the additional written statement and that the question whether she is entitled to these sums shall be decided in the further proceedings which must take place before the final decree is passed. This is a very proper attitude and the petition will be allowed.

20. C.R.P. No. 1493 of 1941 has been filed by the executors. The Subordinate Judge allowed them their costs in both the administration suit and in the probate proceedings and directed that the costs should be paid out of the estate. The executors applied for further time in which to file their bills of costs and time was granted. They filed them in time, but notwithstanding his earlier order, the Subordinate Judge refused to allow these costs in the preliminary decree. Again all parties are agreed that this was an error and that the executors shall be allowed such costs as are found due to them on taxation. There will be an order accordingly.

21. The preliminary decree passed by the Subordinate Judge will be amended in accordance with the directions given in this judgment and the administration of the estate by the Court will be continued on the lines indicated. The costs of all parties in the appeals and the civil revision petitions both here and below will be paid out of the estate. There will be a certificate for two counsel where two counsel have appeared. A certificate will issue under Section 205 , Government of India Act, 1935.


JUDGMENT <NAME>, J.

1. This appeal has been preferred against the decision of <ORG> (hereinafter called 'the <ORG>') against the decision awarding a sum of Rs. 25,000/- as compensation payable to one <NAME>, the respondent in this appeal and the claimant before the <ORG> in M. O. P. 3 of 1968 on its file. <NAME>'s only son <NAME>, aged about 12 years, met with his death as a result of a bus accident in the Bazar Road, Ambattur, opposite to <ORG> on 18-10-1967 at about 3-45 p.m. <NAME>, the first respondent in the petitions, is the owner of the Bus No. MSW. 2471 involved in the fatal accident and <ORG>, is the 2nd respondent. <NAME>, the mother of the unfortunate boy, made the claim for compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act). She claimed compensation of Rupees 70,000/- and Rs. 5,000/- for expenses, pain and suffering. The <ORG> awarded a sum of Rs. 25,000/-. In support of her case, the father of the boy and one <NAME>, a retired teacher of the school, were examined as witnesses, while on the other side the bus driver, the conductor and the Joint Regional Transport Officer were examined. <NAME>, the teacher, has given evidence that he was standing opposite to <ORG> at about 4 p.m. on 18-10-1967, that school children were coming out of the school, that the bus was going fast from south to north towards the bus stand and the boy was run over by the bus. There is no effective cross-examination and nothing is suggested to him that the accident happened in any other manner that the boy was run over on account of the boy's negligence and no theory is suggested to this witness to make out that the driver of the bus was not negligent and that the accident occurred on account of the negligence of the boy suddenly running across the bus or at the rear side of the bus. In the counter of the bus owner it was stated that the accident occurred because the boy suddenly darted across the road and got himself involved in the accident and that the accident was due to the negligence of the boy. Virtually the second defendant adopted the counter of the first respondent. In the course of the evidence, the driver and the conductor developed a new theory that while the bus was being driven at a slow speed, the boys were chasing the deceased and in that process the deceased ran and dashed himself at the rear end of the bus, sustained injuries, and, as a result thereof, died. The post mortem certificate Ex. A-2 shows that the boy had sustained 19 injuries, of which injuries Nos. 13 to 16 were fractures of the high bone, ribs, etc. The Judge has adverted to the discrepancy between the evidence of R. W. 1 and R. W. 2 as well as the discrepancy revealed in the evidence of R. W. 2 who gave evidence in the criminal case in which the bus driver was prosecuted. From the evidence it is clear that the driver was clearly guilty of gross negligence and rashness in driving the bus. The area is a school zone and just at the time the boys were coming out of the school and therefore the bus driver should have been extremely cautious and careful and mere regulation of speed by itself even if true would not avail. P.W. 1, the teacher, has given clear evidence. The evidence of R. Ws. 1 and 2 shows that they did not even see the boy at the time of the accident and in the cross-examination it is established that they were unable to explain how the accident occurred. It is some theory which they developed in the course of the evidence. Admittedly, there was no passenger in the bus and it is clear that the driver was driving the bus in a rash and negligent manner in a fast speed and without any care and caution, which resulted in the death of boy. We have perused the evidence of the bus driver and the conductor and we have no hesitation to say that their evidence is unreliable. The inspection report of the Motor Vehicles Inspector, which contains a plan attached, also tends to the same inference that death was not due to the boy's dashing against the rear portion of the bus, but it was a clear case of the bus running over the boy. If the accident occurred in the manner claimed by the driver and the conductor, it would have been mentioned so in the forefront in the counter. But, as already observed, in the counter, the case is, the child suddenly darted across the road and got involved in the accident. This evidence is given especially when the criminal prosecution was pending against the driver at that time. We have not the slightest hesitation in accepting the finding of the <ORG> that the death was due to the rash and negligent driving of the bus by the driver without taking any care or caution in the matter.

2. On the question of the quantum of compensation, the learned counsel for both sides invited our attention to several decisions. Learned Counsel addressed arguments based upon a comparative statement as revealed in the several decisions cited with reference to the victim's age at the time of his death, the age of the claimant, if the victim had been in employment, what salary or remuneration he was earning, the prospect in the increase of his emoluments if he had led a normal life up to the end of his career the contributions likely to be made to the claimant out of the victim's earnings, the affluence and the wealth of the claimant and the damages awarded in the individual cases. A study of the decisions reveals how wide is the variation between the judgments of various courts in assessing under comparable circumstances a suitable figure as compensation which, after all should appear "to be just" to the <ORG> exercising jurisdiction under Section 110-B of the Motor Vehicles Act, newly introduced. Section 110-B does not lay down any condition as to the manner of the exercise of jurisdiction by the tribunal and all that it states is that it has to hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be just. The use of the expression 'just' which is very wide and comprehensive in its import is of vital importance while adjudicating upon a claim under Section 110-B . Sections 110 to 110-F were introduced into the provisions of the Motor Vehicles Act by Act 100 of 1956. Prior thereto several decisions in India and in England had been rendered in claims arising out of Motor Vehicles Accidents in which the compensation was determined by applying the provisions of the Fatal Accidents Act of 1855 and the general law of Torts. Under Sections 110 and 110-F a self-contained machinery has been provided for the adjudication of claims for compensation in respect of claims arising out of motor vehicles accidents. Special claims tribunals have been constituted and a special procedure has been laid down in the Act for the adjudication of such claims. Section 110-F bars the jurisdiction of <ORG> to entertain any question relating to any claims for compensation arising out of motor vehicles accidents for which special provision has been made in the Act. When this special procedure was introduced in 1956, a wealth of case law has grown up with regard to adjudication of such claims and the various decisions pronounced by the courts in the solution of the problem in varying contexts in all of which the question was discussed mainly with reference to the Fatal Accidents Act and the general law of Torts, whether in India or in England. If we may say so, the <ORG> must have been aware of the fact that eminent Judges have observed that the problem is by no means of easy solution and has been mainly coloured or influenced by certain technical rules and principles evolved from a long course of decisions and is beset with various difficulties, doubts, contingencies and uncertainties and to a large extent the determination of compensation is a work of estimate, balancing the relative weight of several elements which enter into the computation. The precedents while enunciating that the <ORG> has ample latitude in the matter have at the same time laid down certain technical rules in the form of guide-lines which to some extent detract from the amplitude of the discretion of the court. It is in this environment that the new set of provisions were introduced into the Motor Vehicles Act constituting a self-contained machinery. The new provisions do not either impliedly or expressly incorporate the provisions of the Fatal Accidents Act but deliberately leave the jurisdiction, powers and discretion of the court unfettered by imposing the only condition that the tribunal should enquire into the claim and determine the amount of compensation which should be 'just'. Our attention was drawn to certain decisions arising out of the claims under the Motor Vehicles Act as amended in 1956 revealing a divergence of view on the question whether the newly introduced provisions of the Motor Vehicles Act are self contained and constitute an exhaustive machinery or whether the ultimate liability should be determined only in accordance with the provisions of the Fatal Accidents Act and the principles enunciated by decisions rendered under that Act. In a recent decision of the Supreme <ORG> reported in <CITATION> ., , the Supreme <ORG> while observing that the powers given to the <ORG> in the matter of fixing compensation under Section 110-B are very wide, has left open the question whether the compensation has to be fixed on the same basis, as is required to be done under the provisions of the Fatal Accidents Act .

3. We may refer to the recent Bench decision of <ORG> reported in Kamaladevi v. <NAME>, , in which it was held that Sections 110 to 110-F of the Motor Vehicles Act do not deal with the liability at all, that they only provide a new mode of enforcement of liability in respect of accidents, that so far as the liability is concerned, the provisions of the Fatal Accidents Act and the law of Torts would still apply and that the provisions in Section 110-B that the compensation amount must appear to be just do not create any new basis for assessing compensation and that the basis for the determination of the liability is the substantive law already in force. This decision has differed from the view taken in the earlier decisions in <CITATION> , , <NAME> v. <ORG>, 1967 Acc CJ 297 and <CITATION> , , that the words 'which appear to it (tribunal) to be just' are wider in scope than the words used in the provisions of the Fatal Accidents Act and the tribunal is not bound by the technical rules and the limitations evolved in the case law in the interpretation and the application of the provisions of the Fatal Accidents Act . The reasoning of the Bench is that the provisions in Sections 110 to 110-F do not enter into the field of the law of liability which would still continue to be governed by the provisions of the Fatal Accidents Act and the law of Torts and the new provisions are in no way intended to give a go-by to the limits and the basis of the liability which will have to be determined under the provisions of the Fatal Accidents Act and that Sections 110-A to 110-F provide merely a cheap and expeditious remedy for the ascertainment of that liability.

4. In a latter decision of the same court reported in <CITATION> , , a different view was taken to the effect that the tribunal has to award such compensation as may be 'just' and that the tribunal need not strictly follow the decisions under the Fatal Accidents Act . The attention of the Bench was not drawn to the earlier decision. The Bench observed that the expression 'just' in Section 110-B is wide in ambit than the words used in Sections 1-A and 2 of the Fatal Accidents Act and that the tribunal has to only consider what appears to it to be just compensation and it need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act , Indian or English, though they may be merely of general guidance. The Bench also observed that the decisions in India and England arising under the Fatal Accidents Act may be applicable only in so far as 'they promote interests of justice' under the facts and circumstances of each particular case to help the <ORG> to award compensation which is just.

5. We may at this stage refer to the Bench decision of this court consisting of <NAME>, <NAME> and <NAME>, J. in which the Bench observed that Sections 110 to 110-F of the Motor Vehicles Act are self-contained Code providing for compensation and the machinery of adjudication in cases of motor accidents and that the provision in the Act has no connection with the Fatal Accidents Act and it cannot be contended that a claim under the Motor Vehicles Act should be governed by the provisions of the Fatal Accidents Act . The Bench emphasised--

"It is noteworthy that Section 110 to 110-F that we have referred to, make no mention of any kind concerning any of the provisions of the Fatal Accidents Act and do not incorporate any such provision even by the most oblique reference".

It is true that this <ORG> decision had not to deal with the principles to be applied in the matter of assessment of the compensation but had only to deal with the class of persons who would be entitled to make the claim, i.e., whether the class of persons covered by Sections 110-A to 110-F is the same as the provisions of the Fatal Accidents Act . The question which the <ORG> had to decide was whether the expression 'representative' in the Fatal Accidents Act means the same thing as the same word used in Sec. 110- A of Motor Vehicles Act and the <ORG> held that the expression 'legal representatives' in the Motor Vehicles Act is used in the general sense and not in the restricted sense as in the Fatal Accidents Act . The principle of this <ORG> decision was followed and applied by a <ORG> of <ORG> in , even with regard to the basis for the determination of the just compensation, in the view that the provisions of Sections 110 to 110-F of the Motor Vehicles Act constitute a special law and would therefore prevail over the general law embodied in the provisions of the Fatal Accidents Act . The relevant discussion is to be found in paragraph 40 (pages 189 and 190). With respect, we agree with the view taken in the decision of <ORG>. The provisions newly introduced, Secs. 110 to 110-F purport to consolidate and amend the law relating to claims arising out of the motor accidents and are intended to provide a quicker and speedier remedy by way of application before the claims' tribunal. these provisions are self-contained and exhaustive. Further, as already observed, the case law rendered under the general law of Torts and in the interpretation and application of the provisions of the Fatal Accidents Act has developed considerably for over a century and for over three or four decades motor accidents fatal or otherwise, have increased beyond all proportion. The classical statement of <ORG> in <NAME> v. <NAME>, 1937 AC 826 in the <NAME>'s case, 1941 AC 157 in the oft quoted case <NAME> v. <ORG>, 1942 Acc CJ 601 will show the many imponderables and difficult problems which the courts have solved in assessing the compensation in each case. <NAME> on Tort, 8th Edition, at page 627, in the paragraph under the caption 'Criticism of the existing law' has observed that the law is still not entirely satisfactory and that the <ORG> must discharge a solemn duty (go through the solemn farce of putting a value on such an incalculable thing). It is because of this reason that <ORG> did not want to incorporate the provisions of the Fatal Accidents Act into the Motor Vehicles Act and defined the powers and jurisdiction of the tribunal in a wide and comprehensive term and that what the tribunal decides must be a just compensation on the facts of each particular case. As observed by the Supreme <ORG> in some other context, it is neither feasible nor advisable "to encase a discretionary power within the straitjacket of an inflexible formula." The term 'just' is derived from the Latin word justus. It has various meanings and its meaning is often governed by the context. 'Just' may apply in nearly all of its sense, either to ethics or law, denoting something which is morally right and fair and sometimes that which is right and fair according to positive law. It connotes reasonableness and something conforming to rectitude and justice, something equitable, fair (vide page 1100 of volume 50 Corpus Juris Secundum). At page 438 of Words and Phrases, edited by <ORG>, Vol. 23, the true meaning of the word 'just' is in these terms-

"The word 'just' is derived from the Latin justus, which is from the Latin jus, which means a right and more technically a legal right--a law. Thus 'jus dicere' was to pronounce the judgment; to give the legal decision. The word 'just' is defined by <ORG> as right in law or ethics and in Standard Dictionary as conforming to the requirements of right or of positive law, and in <ORG> as probable, reasonable. <ORG> defines 'just' as fair, adequate, reasonable, probable; and justa causa as a just cause, a lawful ground. <NAME> v. <NAME>, 81 NYS 1072, 1073 83 App Div. 1."

Again at page 437 of the same book, it is stated--

"Instruction that plaintiff in action for personal injury had burden of proving by preponderance of the evidence that his claim is just, and that he is entitled to recover, was erroneous, as a just claim is not always a legal claim that may be compensated for in damages, and as 'just' may apply in nearly all its senses to either ethics or law, denoting something which is normally right and fair, and sometimes that which is right and fair according to positive law--Lake Mancock and C. R. Co. v. <NAME>, 81 So 512, 77 Fia. 333."

There is no need to refer to other dictionaries or cases in which the word 'just', in conjunction with other words like 'just and reasonable' 'just and fair' and 'just and expedient' has been explained by the courts, because the word 'just' will take its colour from the main purpose and object of the enactment, Further, as observed by <NAME>, C. J., in V. G. Row v. State of Madras, , "Even ideas of what is just differ from age to age. What may seem to be just to one man in one age may appear to another man in another age totally differently". It is enough to hold that the word ' just' in Section 110-B of the Motor Vehicles Act has been used in a very wide and comprehensive sense.

6. We are therefore of the view that there is no warrant for literally importing the provisions of the Fatal Accidents Act into Section 110-B of the Motor Vehicles Act so as to read both the provisions as part and parcel of one provision. By this we should not be understood as saying that the <ORG> can adopt any method which is arbitrary and capricious or in disregard of well-established principles. The decisions rendered under the general law of Torts and under the Fatal Accidents Act will undoubtedly be relevant and constitute broad guidelines, but they would not be binding upon the <ORG> in the sense that the method of approach should be the same and identical as in the cases arising under the Fatal Accidents Act .

7. In the instant case, on the question of compensation, there is the evidence of P.W. 1, the father of the victim, which has been accepted by the <ORG>. There is no contra rebutting evidence. The evidence of P.W. 1 shows that the family of the victim is respectable and fairly affluent, and the members of the family are long-lived. The children of the brother of P.W. 1 are well educated, one is a doctor, and another is an advocate, both having god practice. The victim was the only son born to the parents, rather late in their life. Naturally, they were deeply affectionate and attached to the boy. They were taking all interest in the boy and in building up his career; they had put him in <ORG> giving him the best education even to start with. The boy was a healthy boy and was first in the rank in school.

8. P.W. 1 was carrying on money lending business. There can be no doubt whatever that the boy would have a predominantly happy life if this tragedy had not occurred. There is nothing in the family environment to detract, in any manner, from the full prospects of a predominantly happy life. He would have had no problems or difficulties to worry him. One can easily visualise the feelings and the shock and the sufferings of the parents when their only child met with his death under such tragic circumstances. The question is whether the compensation awarded by the <ORG> is otherwise than just, i.e., so excessive and vitiated by any error of law or principles, so as to call for interference. It is settled law that <ORG> should be very slow in differing from the verdict of the tribunal in the matter of the award of just compensation. If the tribunal had taken all the relevant aspects and if it had not taken into consideration any irrelevant or extraneous matter, and no error of law or principle had been committed by the <ORG>, the appellate Court will not interfere merely because it may differ on the question of the quantum. It is obvious, there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at in precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case. To considerable extent the amount of compensation fixed is based upon an estimate, though conjecture, to some extent, is inevitable. The only limitation is, the court must exclude all considerations of matter which rest in the realm of speculation or fancy or mere sentiment or emotion. The amount fixed ultimately depends upon an objective estimate of what kind of future on earth the victim might have enjoyed, the loss of benefit to the parents on the dependents; in the nature of things, no guidelines in the abstract can be laid down.

9. As regards the measure of liability in the case of motor accidents, the decisions of <ORG> reported in <CITATION> , and <CITATION> , have (after a discussion of all the leading decisions in England) laid down the main principles. Both the decisions did not have to consider the measure of liability under Section 110-B of the Motor Vehicles Act. We may now take it as settled law that under the Fatal Accidents Act the liability under Section 1 and Section 2 are distinct, different and independent. Under Section 1 , damages are recoverable for the benefit of persons mentioned therein as loss sustained by them, while under Section 2 , damages are awarded for the recoupment of the pecuniary loss to the estate of the deceased as a result of the accident. The two claims are based upon different causes of action and the claim ants would be entitled to recover compensation separately under both the heads. If, however, the person who takes benefit under Section 1 happens to be the same person as entitled to compensation under Section 2 , there cannot be duplication of the dame claim and the compensation awarded under Section 2 for the loss of the estate of the deceased will be taken into account in the calculation of the compensation payable to the claimants under Section 1 . In both the decisions of <ORG>, the statement of the law of <NAME>, L.J., in <ORG> v. <NAME>, 1913 AC 1 at p. 7 had been referred to with approval and followed. In 1913 AC 1 it was held that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. Reference may be made to the following classical statement of the law by Lord <NAME> at page 7 in 1913 AC 1 referred to in the decisions of <ORG>:--

"In 1913 AC 1, <ORG> observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act , 1846 that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. Therein Lord <NAME> stated the law thus:--

'I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact--there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express by emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them.' "

<ORG> summed up the law in these terms at pages 380 and 381:--

"The law on the point arising for decision can be summed up thus: Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2 , the measure of damages is the economic loss sustained by the estate. there can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present case value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.

"Now applying the above rules to the facts of the present case, it is seen that the deceased child was only 8 years old at the time of his death. How he would have turned out in life later is at best a guess. But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education. It is not likely that he would have given any financial assistance to his parents till he was at least 20 years old. As seen from the evidence on record, his father was a substantial person. He was in business and his business was a prosperous one. As things stood he needed no assistance from his son. There is no material on record to find out as to how old were the parents of the deceased at the time of his death. Nor is there any evidence about their state of health........."

In even though the case arose out of a claim under Section 110-A of the Motor Vehicles Act, <ORG> discussed the problem with reference to the provisions of the Fatal Accidents Act , leaving open the question whether the power conferred upon the <ORG> under Section 110-B of the Act is wider.

10. It is unnecessary to refer to the several cases cited by counsel on both sides as the determination of compensation turns upon the particular facts of each case. The result of the case law is (1) The thing to be valued is not merely the prospect of the length of life, but the prospect of predominantly happy life of the deceased. This undoubtedly would vary from case to case, depending upon the family environment, the members of the family, the health, and age of the victim, his outlook in life, the interest which his parents were taking in the boy, and the totality of circumstances tending to show whether the victim would have a predominantly happy life or a life of misery or a life of despondence or an insipid life. Even though it depends upon very many uncertain factors, the <ORG> has to take an overall picture and form its estimate though, to some extent, it must be based upon speculation. (2) The pecuniary loss sustained by the persons entitled to claim compensation as a result of the accident. In determining the pecuniary loss, say, the age of the boy at the time of his death, the age of the parents and the prospects of the boy contributing his earnings to the parents will have to be taken note of. In the case of a father and an only son, it is difficult to formulate a uniform rule that, because the father himself is carrying on business with affluence, there will not be any contribution by the deceased if he had not met with the accident. It cannot be said to be arbitrary or capricious to visualise that both the father and the son would have together pooled up their resources and income and augmented their wealth. The pecuniary loss will have to be evaluated with reference to several considerations and the pecuniary loss to the family will be the pecuniary loss to the mother herself on the facts of this particular case, when the family consists only of the father, the mother and the son. In some of the decisions, it is seen that the courts have taken rather a pessimistic view of the future prospects of the young boy who met with the accident, on the ground that no one can be certain about the child's future or correctly estimate his future pecuniary prospects in the view that the boy would have to pass through several risks and uncertainties, in his childhood and young age, and on that account, a moderate sum has been awarded as damages. In some other cases, courts have taken a more liberal view and have awarded damages under both the headings on the basis of predominantly happy life which the victim would have lived but for the accident, taken along with the fact that the boy was a bright boy and that the parents evinced great interest in shaping the career of the boy and in his prospects. If the value is to be ascertained with reference to the bright prospect of a predominantly happy life, it will at once be realised that that does not necessarily depend upon the wealth or status of the family alone. As <NAME> pointed out in <NAME> v. <NAME> 1962-1 All ER 257 at p. 264, "Wealth and fine physique clearly do not ensure happiness, nor do poverty or disablement necessarily entail unhappiness."

In <NAME> v. <ORG>, 1943-2 All ER 477 at p. 485 <NAME>, J. emphasising that 'life is our most precious asset' observed as follows--

"There, then, is the guidance; but one cannot forget that life is deemed by the law to be our most precious asset. The severest punishment that the law knows is that of depriving a man of his life; it is considered of greater value than liberty and to be a more severe punishment than depriving a man of his liberty for the rest of his natural life, which usually means at the outside, I suppose something under 20 years."

In <NAME> v. <NAME>, 1961-3 All ER 323 affirming the decision reported in 1960-3 All Er 677, a boy aged 20 months sustained serious brain injuries as a result of a motor accident and he became mentally unable to talk or to understand what was said to him. In the special circumstances of the case, the award of £.11,000 was confirmed by the appellate Court. In that case it was observed that the victim was entitled to compensation for loss of the amenities of life like the loss of opportunity to marry, earn a livelihood and to enjoy life. The fact that the father of the infant was an executive earning £.1250 per year was also taken into account. Lord <NAME> who tried the action and awarded £.11,000 as damages, observed as follows, at page 679:

"The infant plaintiff is, I think, entitled to something for what he has lost, whether he knows he has lost it or not, albeit that the amount may well be less than in the case of a person who has enjoyed life and amenities and knows that he has lost them. The trouble, however, is to put that into money. There are so many imponderables, especially in the case of such a young child. As far as loss of earnings is concerned, the considerations involved again cannot easily be put into pounds, shillings and pence. Here against, there are imponderables. What education would the parents have been able to give the child? If not, how far would the child succeed? What trade or profession would he take up and what would he have earned? There is no conceivable clue to that. The only guide, if it be any guide at all--and I do not think it is--is that his father is working in an executive capacity making, I am told, £.1250 a year. In addition, there are questions of taxation and other matters, but whatever view one takes as to eventual earnings, the figure must, in the case of such a young child, be heavily discounted.......... Doing the best I can in all the circumstances, I would award to this child a sum of £.11,000..............."

In the appeal from that decision, reported in 1960-3 All ER 323, <ORG>, while adverting to the difficult task in assessing the value of the loss of expectation of a predominantly happy life, observed that the assessment of such a claim involves an investigation in detail of the temperament and health of the victim, his expectation of life and his expectation of material prosperity. After referring to some of the decisions in England, the learned Lord Justice emphasised that the circumstances of that case must lead to the inference that the victim had been deprived of a positive measure of happiness, the test being the bright prospect of a predominantly happly life. At pages 332 and 333, while pointing out the proper approach of an appellate <ORG> in dealing with the award of damages, it was observed as follows:--

"The appeal is more difficult. The ingredients that go to make the final figure have been scrupulously weighed in the judgment. We can only alter it if we are satisfied that it is a wholly erroneous estimate of the damage, if we are satisfied that, broadly speaking there is only one reasonable answer to the problem and that the learned Judge has failed to give it. One cannot seek for precision or certainty in many cases which are tried by the courts in their anxious task of weighing imponderables. Often, there is a norm, whether established by common sense or reason or the convention of the courts. Then one can decide how great a departure from it justified the description 'wholly erroneous'. Here there is no such norm. Both counsel of great experience describe the case as unique. They can cite no comparable case among the many strange and unhappy injuries that have come before the courts.............. But one must award such a sum as represents, artificially, the gravity of the loss. It is hard to give cogent reasons for this figure or for that. One can merely assert. I myself would feel inclined towards a larger figure, but the learned Lord Chief Justice and my brethren all think otherwise. I can give no adequate reason to support a higher figure or to show that on figure is more right than the other. There is no norm by which one can say that this figure is right and the other wrong. To say in <NAME>'s words, 'I cannot argue I can only feel' may be permitted in a jury-man but it is rarely a sound foundation for a judgment. Here, the Lord Chief Justice has impeccably balanced all the relevant matters with sympathy and anxious consideration and arrived at a conclusion. One certainly cannot say that it was wholly erroneous. I would therefore somewhat regretfully agree with my brethren's view that the appeal must be dismissed."

With respect, these observations apply to the instant case 'which is unique' and we ourselves cannot give any cogent reasons for saying that some other figure would be more right than the figure awarded by the <ORG>. It is unnecessary to discuss the matter further; the appellate Court would be slow to interfere with the verdict of the <ORG>, as it is inevitable that in assessing the damages, elements of estimate and to some extent, conjecture and a balancing of chances and changes of fortune enter into the computation of the quantum. The appellate Court would interfere only if it is satisfied that the result reached was out of all proportion to the circumstances of the case and clearly capricious and arbitrary. In <NAME> v. <ORG>, 1968-1 All ER 518, while adverting to the difficult and invidious task of the Judge in ascertaining the damages, <NAME> at page 523 observed-

"The task is frequently perplexing, and its performance cannot be regarded as affording one of the most impressive examples of the exercise of the judicial function. Certainly it is one of the most difficult."

A reference to the discussion in the recent decision of <ORG> reported in <ORG> v. <NAME>, 1963-2 WLR 1359 = (1963-2 All ER 625), in which the decision in 1962-1 All ER 257 was approved, will show that the trend of later decisions is to limit the scope of the principle enunciated in 1941 AC 157 and that the award of damages is essentially a matter of opinion and experience and the court can pay due regard to 'the range and limits of the current thought.' In Salmond on Torts, 14th Edn. at pages 752 and 753, the learned author discusses the limits on the functions of an appellate <ORG> in the matter of award of damages and has summed up by saying that court would interfere if it said to itself (as observed by Lord <NAME> in <NAME> v. Coldair <ORG>., 1951-2 TLR 1226) 'Good gracious me--as high as that'. Taking an overall picture of all the aspects of the case and also bearing in mind that under S. 110-B of the Motor Vehicles Act, the jurisdiction of the <ORG> to award 'just compensation' is very wide and comprehensive, we cannot say that this situation envisaged by <NAME> L. J. has arisen in this case. Amongst other considerations, the <ORG> has awarded damages on the basis that the victim is likely to contribute a sum of Rs. 100 per mensem for about 45 years. It may be that one can take a view that the likely monthly contribution may be more and the period may be less, but it is not possible to be dogmatic in such matters. If an award of £.11,000 in the case of a child of 20 months has been upheld by the <ORG> of Appeal in England, we cannot say that the award of Rs. 25,000 in the case of a boy of 12 years is so excessive as not to be just within the meaning of Section 110-B of the Motor Vehicles Act. For all these reasons, we confirm the decision of the <ORG> and dismiss the appeal with costs.

11. Appeal dismissed.


PETITIONER: THE COMMISSIONER OF SALES TAX, <NAME>, <NAME> Vs. RESPONDENT: PARSON TOOLS AND PLANTS, KANPUR DATE OF JUDGMENT27/02/1975 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. GUPTA, A.C. CITATION: 1975 AIR 1039 1975 SCC (4) 22 ACT: Interpretation of Statutes--<ORG> wilfully omitting to incorporate an analogous law in subsequent statute--Language plain and unambiguous--<ORG>s if competent to supply the omission by analogy or implication. Interpretation of Statutes--Law of limitation--Special statute prescribing certain period of limitation--Provision for extension upto specified time-limit on sufficient cause being shown--Time-limit, if could be extended on anology of s. 14(2) of Limitation Act . U.P. Sales Tax Act, 1948 and U.P. Sales-tax Rules, Rule 68--Appellate <ORG> and Judge (Revisions) under the Act, if <ORG>s within the meaning of s. 14(2) of Limitation Act. U.P. Sales Tax Act, 1948, s. 10(3)(i) and s. 10(3B) --Revision application--Revising <ORG> not conferred with discretion to extend period of limitation beyond six months even on sufficient cause shown--Principle of s. 14(2) of Limitation Act, if could be imported into s. 10(3B) by analogy. HEADNOTE: The Sales-Tax Officer assessed tax for the assessment years 1958-1959 and 1959-60, on-the respondent assessee by two separate orders. The assessee filed appeals against those orders before the Appellate <ORG>. On May 10, 1963, when the appeals came up for hearing, the assessee was absent. The appeals were, therefore. dismissed in default by virtue of Rule 68(5) of the U.P. Sates-tax Rules. Sub- rule (6) of Rule 68. provided for setting aside such dismissal and for re-admission of the appeal. On the same day (May 10, 1963), the assessee made two applications in accordance with Sub-rule (6) for setting aside the dismissal. During the pendency of those applications, Subrule (5) of Rule 68 was declared ultra vires the rule- making authority by <NAME> of <ORG> who further held that the Appellate-<ORG> could not dismiss an appeal in default but was bound to decide it on merits even though the appellant be absent. When these applications under r. 68(6) came up for hearing. on 20-10- 64, the Appellate-<ORG> dismissed them outright in view of the ruling of <NAME> Against the order of dismissal of his appeals, the assesees on 16-12-1964 filed two revision petitions under s. 10 of the Sales-tax Act, before the [Judge (Revisions) Sales-tax]. These revisions petitions having been filed more than 18 months after the dismissed of the appeals which was the maximum period of limitation prescribed by sub-s. (3) of s. 10-were prima facie time-barred. They were however, accompanied by two application's in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under r. 68(6) for setting aside the dismissal of his appeals. The Revisional <ORG> found that the assessee had been pursuing his remedy under r. 68(6) with due diligence and in good faith. It therefore excluded the time spent in those proceedings from computation of limitation by applying s. 14 , Limitation Act and in consequence, held that the revision petitions were within time. On the motion of the Commissioner of Sales-tax. the Judge (Revisions) Sales-*ax made two references under s. 11(1) of the Sales_tax Act to <ORG> for answering the following question of law "Whether under the Circumstances of the case, s. 14 of the Limitation Act extended 'the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fid." The references were heard by a Full Bench of three learned Judges each of whom wrote a separate Judgment. <NAME> with whom <NAME> agree utter refraining the question held "that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be 744 excluded from computing the period of limitation for filing the revision by the application of the principle underlying s. 14(2), Limitation Act ." <NAME> was of the opinion : "The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as a <ORG> but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither s. 29(2) nor is 14(2) of the Limitation Act will apply to proceedings before him." The learned Judge was further of the view that the principle of s. 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the <ORG> in sub-section (3-B) of s. 10 of the Sales-tax Act. These appeals have been preferred on the basis of the special leave granted by this court. Allowing the appeals, HELD : (i) If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the <ORG> is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be. a general principle of justice and equity. To do so "would be entrenching upon the preserves of <ORG>", the primary function of a court of law being jus dicere and not jus dare. [749D-E] (ii) If the' legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in 'clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of s. 14(2) of the Limitation Act. [751D- <CITATION> . A.I.R. 1929, P.C. 103 and <CITATION> . A.I.R. 1954 Bom. 309, referred to. (iii) In view of the pronouncements of this <ORG> in <NAME> v. State of U.P.,  2 S.C.R. 778 and jagannath <CITATION> .  2 S.C.R. 850, there is no room for argument that the Appellate-<ORG> and the Judge (Revisions) exencising jurisdiction under the U.P. Sales Tax Act, 1948, are '<ORG>s'. They are merely administrative Tribunals and "not courts". Section 14 , Limitation Act , therefore, does not, in terms apply to proceedings before such Tribunals. [747E] (iv) Three features of the scheme of provisions of s. 10(3)(i) and section 10(3B) are noteworthy. The first is that no limitation has been prescribed for the suo matu exercise of its jurisdiction by the Revising <ORG>. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that the Revising <ORG> has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. The three stark features of the scheme and language of these provisions, unmistakably show that the legislature has deliberately excluded the application of the principles of Ss. 5 and 14 of the Limitation Act . except to the extent and in the truncated form embodied in sub-s. (3- B) of s. 10 of the Act. [748D-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1458-1459 of 1970.

Appeal by special leave from the judgment and order dated the 1st January, 1970 of <ORG> in S.T.R. No. 344 and S.T.R. No. 347 of 1967.

<NAME>

<NAME> and <NAME>, for the appellant. No. appearance, for the respondent.

The Judgment of the Court was delivered by SARKARIA, J.-The common question of law for determination in these appeals by special leave is': Whether s. 14(2) of the Limitation Act, in terms, or, in principle, can be invoked for excluding the time spent in prosecuting an application under Rule 68(6) of the J.P. Sales Tax Rules for setting aside the order of dismissal of appeal in default, under the U.P. Sales Tax Act, 1948 (for short, the Sales= Act), from computation of the period of limitation for filing a revision under that Act?

It arises out of these circumstances.

The respondent, <ORG> (hereinafter- referred to as the assesse) carries on business at Kanpur. The Sales-tax Officer assessed tax for the assessment years, 1958-1959 and 1959-60, on the, assessee by two separate orders. The assessee filed appeals against those orders before <ORG>. On May 10, 1963, when the appeals came up for hearing, the assessee was absent. The appeals were, therefore, dismissed in default by virtue of Rule 68(5) of the U.P. Sales-tax Rules. Sub-rule (6) of Rules 68 provided for setting aside such dismissal and re- admission of the appeal. On the same day (May 10, 1963), the assessee made two applications in accordance with Sub- rule (6) for setting aside the dismissal. During the pendency of those applications, Sub-rule (5) of Rule 68 was declared ultra vires the rule-making authority by <NAME> of <ORG> who further held that <ORG> could not dismiss an appeal in default but was bound to decide it on merits even though the appellant be absent. When these, applications under Rule 68(6) came up for hearing, on 20-10-1964, <ORG> dismissed them outright in view of the ruling of <NAME> Against the order of dismissal of his appeals, the assessee on 16-12-1964 filed two revision petitions under s. 10 of the Sales-tax Act,, before <ORG>). These revision petitions having been filed more than 18 months after the dismissal of the appeals, which was the maximum, period of limitation prescribed by sub-. 73) of s 10-were prima facie time- barred. They were however, accompanied by two applications in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under Rule 68(6) for setting aside the dismissal of his appeals. <ORG> found that the assessee had been pursuing his remedy under Rule 68(6) with due diligence and in good faith. It therefore excluded the time spent in those proceedings from computation of limitation by applying s. 14, Limitation Act and in consequence, held that the revision petitions were within time. On the motion of the Commissioner of Sales-tax, <ORG> made two references under s. 11 (I) of the Sales-tax Act to <ORG> for answering the following question of law :

"Whether under the circumstances of the case, section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide."

The references were heard by a Full Bench of three learned Judges, each of whom wrote a separate Judgment. <NAME> with whom <NAME> agreed after reframing the question held "that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be excluded from computing the period of limitation for filing the revision by the application of the principle underlying S. 14(2) . Limitation Act ."

<NAME> was of the opinion: "The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as a <ORG> but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither s. 29(2) nor s. 14(2) of the Limitation Act will apply to proceedings before him.," The learned Judge was further of the view that the principle of s. 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the <ORG> in sub-section (3-B) of s. 10 of the Sales-tax Act.

Sub-section (2) of s. 14 , Limitation Act , runs thus "In computing the period of limitation for any application, the-time during which the applicant has been prosecuting with due diligence another civil proceedings, whether in a <ORG> of first instance or of. appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a <ORG> which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." (emphasis added).

If will be seen that this sub-section will apply only if-

(1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) the proceedings had been prosecuted with due diligence and in good faith;

(3) the failure of the prior proceedings was due to a defect of jurisdiction or other cause of a like nature;

(4) both the proceedings are proceedings in a Court.

Mr. <NAME>, learned Counsel appearing for the appellant does not dispute the view taken by <ORG> that the Proceedings in question under the Sales-tax Act could be deemed as civil proceeding. Learned Counsel, however, contends that the authorities, irrespective of whether they exercise, original, appellate or revisional jurisdiction under the Sales-tax Act are not 'Courts' within the' contemplation of S. 14(2) of the Limitation Act. It is pointed out that his question stands concluded by this Court's decision in <CITATION> .(1) Mr. <NAME> is right that this matter is no longer res Integra. <CITATION> .(2) <NAME> (as he hen was) speaking for the Court, observed :

"The taxing authorities are instrumentalities of the <ORG>,. They are not a part of the legislature, nor are they a part of the judiciary. Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered Judicial. They are not thereby converted into <ORG>. They will remain the instrumentalities of the <ORG> and are within the definition of "<ORG>" in Article 12." The above observations were quoted with approval by this <ORG> <NAME> case (supra), and it was held that a Sales-tax officer under U.P. Sales-tax Act, 1948 was not a <ORG> within the meaning of S. 195 of the Code of Criminal Procedure although he is required to perform certain quasi- judicial functions. The decision in <NAME> it seems, *as not brought to the notice of he High <ORG>. In view of these pronocements of this <ORG>, here is no room for argument that the Appellent-Authority and the judge (Revisions) Sales-tax exercising jurisdiction under the Salestax Act, are courts." They are merely administrative Tribunals and not courts." Section 14 , Limitation Act , therefore does not, in terms apply to proceedings before such Tribunals.

Further question that remains is : Is the general principle underlying S. 14 (2) applicable on grounds of Justice, equity and good conscience for excluding the time spent in prosecuting the abortive applications under Rule 68 (6) before <ORG>., for computing limitation for the purpose of revision applications. Mr. <NAME> maintains that the answer to this question, also, must be in the negative because definite indications are available in the scheme and language of the Sales-tax Act , which exclude the application of s. 14(2) , Limitation Act even in principle or by or by analogy. Learned Counsel further submits that the ratio of the <ORG> decision in <CITATION> .(s) relied upon by the majority judgment of the High is not applicable for computing limitation prescribed under the Sales-tax Act . Reference in this connection has been made to <NAME> v. <ORG>) wherein a Division Bench of <ORG> explained the rule of decision in <NAME>'s case (supra) and found it to be inapplicable for the purpose of computing limitation for ap- plications under the Arbitration Act , 1940. (1)  2, S.C.R. 850. (2)  1, S.C.R. 778. (3) AlR 1929 P. C. 103, (4) A.I.R. 1954 Bom, 309 The material pail of s.10 runs thus :

"(3) (i). <ORG>....... may, for the purpose of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion call for and examine, either on its own motion or on the application of the Commissioner of gales-tax or the person aggrieved, the record of such order and pass such order as it may think fit.

* * * * * * (3A).........

(3B) The application under sub-section (3) shall be made within one year from the date of service of the order complained of, but <ORG> may on proof of sufficient cause entertain an application within a further period of six months."

Three features of the scheme of the above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by <ORG>. The second is that the period of one year prescribed as, limitation for filing an application for revision by the aggrieved party is unusually long. The third is that <ORG> has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. As rightly pointed out in the minority judgment of <ORG>, pendency of proceedings of the nature contemplated by s. 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but s. 10 (3-B) of the Sales-tax Act, gives no jurisdiction to <ORG> to extend the limitation, even in such a case, for a further period of more than six months.

The three star features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying ss. 5 and. 14 of the Limitation Act , except to the extent and in the truncated form embodied in sub-s. (3-

13) of s. 10 of the Sales-tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of reve- nues and the financial stability of the <ORG>. Section 10 is therefore designed to, ensure speedy and final determination of fiscal matters within a reasonably certain time-schedule.

It cannot be said that-by excluding the unrestricted application of the principles of ss. 5 and 14 of the Limitation Act, the <ORG> has made. the provisions of s. 10, unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six months only, given by sub-s. ( 3_B) would be enough to afford relief. Cases are no doubt conceivable where an aggrieved party, despite sufficient cause, is unable to make an application for revision within this maximum period of 18 months. Such harsh cases would be rare. Even, in such exceptional cases of extreme hardship, the Revising Authoritly may, on its own motion, entertain revision and grant relief.

Be that as it may, from the scheme and language of S. 1  0 , the intention of the <ORG> to exclude the unrestricted application of the principles of ss. 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the <ORG> did not, after due application of mind, incorporate in the Sales-tax Act , cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others,- is that a statute is to be expounded "according to the intent of them that made it". "The will of 'the legislature is the supreme law of the land, and demands perfect obdience".(1) "Judicial power is never exercised" said <NAME> of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the <ORG>; or in other words, to the will of the law".

If the legislature wilfully omits to incorporate something of an 'analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the <ORG> is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so would be entrenching upon the preserves of Legislatures, 'The primary function of a court of law being jus dicere and not jus dare.' In the light of what has been said above, we are of the opinion that the High <ORG> was in error in importing whole hog the principle of s. 14(2) of the Limitation Act into s. 10 (3-B) of the Sales-tax Act.

The ratio of the <ORG> decision in <CITATION> ) relied upon by <ORG> is not on speaking terms with the clear language of s. 10 (3-B) of the Sales-tax Act. That decision was rendered long before the passage of the Indian Arbitration Act , 1940. It lost its efficacy after the enactment of the Arbitration Act which contained a specific provision in regard to exclusion of time from computation of limitation. The case in point is <NAME> v. <ORG> (supra). In this Bombay case, the question was, whether the suit was barred by limitation. It was not disputed that Article 115 of the Limitation Act governed the limitation and if no other factor was to be taken into consideration, the suit was filed beyond time. But what was relied upon by the plaintiff for the purpose of saving

(i) see <NAME> on interpretation of statutes, 11th Edn.,pp.l, 2 and 25l, limitation was the fact that there were certain infructuous arbitration,, Proceedings and if the time taken in prosecuting those proceedings was eXcluded under s. 14 , the suit would be within limitation. It was held that if s. 14 were to be construed strictly, the plaintiff would not be entitled to exclude the period in question. On the authority of <NAME> case (supra), it was then contended that. the time taken in arbitration proceedings should be excluded on the analogy of s. 14 . This contention was also negatived on the ground that since the decision of the Privy Council, the legislature had in s. 37(5) of the Arbitration Act, 1940, provided as to what extent the provisions of the Limitation Act would be applicable to the proceedings before the arbitrator. Section 37(5) was as follows :

"Where the cow orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with respect to the difference referred, the period between the commencement of the arbitration and the date of the order of the <ORG> shall be excluded in computing the time prescribed by the Indian Limitation Act , 1908, for the commencement of the proceedings (including arbitration) with respect to the difference referred."

The reasons advanced, the observations made and the rule enunciated by <NAME>, who spoke for the Bench in that case, are opposite and may be extracted with advantage "........ we have now a statutory provision for exclusion of time taken up in arbitration Pr when a suit Is filed, and the question arises of computing the period of limitation with regard to that suit, and the time that has got to be excluded is only that time which is taken up as provided in s. 37(5) . There must be an order of the <ORG> setting aside an award or there must be an order of the <ORG> declaring that the arbitration agreement shall cease to have effect, and the period between the commencement of the arbitration and the date of this order is the period that has got to be excluded.

it is therefore no longer open to the <ORG> to rely on s. 14 Limitation Act as applying by analogy to arbitration proceedings. If the <ORG> intended that s. 14 should apply and. that all the time taken up in arbitration proceedings should be excluded, then there was no reason to enact s. 37(5) ., The very fact that s. 37(5) has been enacted clearly shows- that the whole period referred to in...a, 49 Limitation Act is not to be excluded but the limited'.. indicated in s. 37(5) .

* * * * * * "it may seem rather curious-and it may also in certain cases result in hardship-as to why the legislature should not have excluded all time taken up in good faith before an arbitrator just as the time taken up in prosecuting a suit or an appeal in good faith is excluded. But obviously the <ORG> did no t intend that parties should waste time infructuous proceedings before arbitrators. The Iegisla- ture has clearly indicated that limitation having once begun to run, no time could be excluded merely because parties chose to go before an arbitrator without getting an award or without coming to <ORG> to get the necessary order indicated in s. 37(5) ." What the learned Chief Justice said about the inapplicability of s. 14 , Limitation Act , in the context of s. 37(5) of the Arbitration Act , holds good with added force with reference to s. 10 (3-B) of the Sales-tax Act. Thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, than the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limk specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of s. 14(2) of the Limitation Act.

We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord <NAME> (1) has said recently, in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself :

"It is true of course that the courts will lean heavily ,against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view (1)At P. 11 in <NAME> [1972] 2 All E. R. 6, of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and theft to amend or supplement it with new provisions so as to make it conform to that judgment."

For all the reasons aforesaid, we are of the opinion that the object, the scheme and language of s.10 of the Sales-tax Act do not permit the invocation of s.14(2) of the Limitation Act , either, in terms, or, in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from com- putation of the period of limitation prescribed for filing a revision under the Sales-tax. Accordingly, we answer the question referred, in the negative.

In the result, we set aside the judgment of <ORG> and accept these appeals. Since the appeals have been heard ex-parte, there will be no order as to costs. <NAME>

Appeals allowed