<NAME>, J.

1. The question involved in this writ petition is, whether <ORG> constituted under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"), has the power to restrain the company from effecting any change in the composition of the board of directors including top managerial personnel pending decision on the question of rehabilitation of the company? The facts, in brief, are as follows :

2. The petitioner is one of the promoters of the second respondent-company, namely, <ORG>. The company was incorporated in the year 1975 as a public limited company under the Companies Act . Mr. <NAME>, was the managing director from 1975 till May 10, 1985, and Mr. <NAME>, was the managing director of the second respondent-company between May, 1985, and September, 1991. Mr. <NAME>, became the managing director from September 28, 1991, and continued till his death on November 20, 1994. There was no managing director for the respondent-company on the date of filing of the writ petition. The total number of directors is eight out of which six were nominated by the financial institutions and Mr. <NAME>, was appointed by the shareholders and Smt. <NAME>, wife of the late <NAME>, was appointed on November 27, 1994, by the board of directors as an additional director.

3. The second respondent-company incurred losses and after the death of Mr. <NAME>, there was total chaos in the management of the company which resulted in mismanagement and also pilferage of funds. On account of the accumulated losses of the company, the company has been declared a sick industrial company by <ORG> under section 15 of the Act. The first respondent initiated further proceedings under section 17(2) of the Act. On October 30, 1990, the first respondent directed the second respondent to make its net worth positive under section 17(2) of the Act. However, the second respondent could not improve its position even after following the condition laid down by the first respondent and consequently the matter of rehabilitating the second respondent is again before the first respondent. Since the package paid under section 17(2) did not work out the first respondent has decided to take action under section 17(3) of the Act and directed the operating agency to prepare the scheme of rehabilitation by its order dated February 23, 1995. Since the second respondent was functioning without any managing director a section of the shareholders representing more than 10 per cent. of the paid-up capital of the company have lodged a requisition on February 1, 1995, before the second respondent requesting to convene an extraordinary general body meeting of the shareholders for the purpose of appointment of Sri <NAME>, as managing director of the company. On receiving the requisition the second respondent-company had issued a notice on February 15, 1995, convening the extraordinary general body meeting on March 16, 1995. The notice was sent to all the shareholders of the company. However, some of the directors filed civil suits in O.S. Nos. 56 and 62 of 1995, before the Principal District Munsiff, <NAME>, seeking injunction restraining the holding of the meeting. Against the orders of the Principal District Munsiff, C.R.P. Nos. 772 and 773 of 1995, were file under article 227 of the Constitution of India and the suits were stayed. However, the first respondent on March 14, 1995, directed the company secretary of the second respondent not to conduct the meeting on March 16, 1995, and threatened the directors with the imprisonment if its orders are violated. Therefore, on March 16, 1995, the meeting was not held. The petitioner and the other shareholders came to know of the order passed by the first respondent on March 16, 1995 at 10.45 a.m. through the notice of the company secretary of the company. Questioning the validity of the order dated March 14, 1995, the present writ petition was filed on various grounds.

4. One of the shareholders of the second respondent-company got himself impleaded as he and his relatives who are also the promoters of the company hold 45,000 equity shares of Rs. 10 each in the second respondent-company. He filed a counter-affidavit stating that the first respondent has sanctioned the rehabilitation scheme for the revival of units by its order dated October 30, 1990. Since the second respondent failed to revive the company as per the package, the first respondent reviewed its order, by order dated February 23, 1995, and appointed <ORG> as the operating agency under section 17(3) and (4) of the Act to prepare a scheme for rehabilitation and revival of the company. The first respondent directed the promoters to furnish all the necessary material along with the minutes of the general body meeting to the operating agency by March 24, 1995. Pending report by the operating agency the first respondent directed "not to effect any change in the composition of the board of directors including top managerial personnel". The operating agency by its letter dated March 9, 1995, directed the second respondent-company to obtain prior approval of the financial institutions for the appointment of the managing director. It was also directed that the second respondent should inform the institutions if there is any change in the composition of the board of directors for their approval since the company's rehabilitation scheme is pending with the first respondent that the petitioner is a third party who filed the above writ petition for the benefit of one of the directors and, therefore, it is not in good faith and the petitioner has also an alternative remedy under the Act and, therefore, the writ petition is not maintainable; that one of the directors filed a Statutory Appeal No. 38 of 1995 before the appellate authority and while admitting the same the said authority had not granted any stay and the appeal was posted on June 2, 1995. The second respondent-company constituted a managing committee consisting of chairman and some of the directors of the second respondent-company including representatives of the financial institutions, chief executive officer and senior vice-president (technical) in order to take a decision on all the important problems. A full-time finance director was also appointed on May 6, 1995, who happened to be a nominee of <ORG> in compliance with the memorandum of understanding. Therefore, there is no urgency for the appointment of a managing director as the affairs of the company are conducted by various professional people under the managing committee constituted for that purpose. Once a reference is made under section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985, by virtue of section 32 , the provisions of the Act will prevail notwithstanding anything contained in the Companies Act . Therefore, the first respondent is competent to pass the impugned order. Further, on a reference made under section 15 an inquiry was conducted under section 16 and the first respondent suggested a package by requesting the management of the company to make its net worth exceed accumulated losses under section 17(2) of the Act on October 30, 1990. Since the company failed to revive the way it was expected, the first respondent appointed <ORG> as operating agency under section 17(3) and (4) of the Act to prepare a report on rehabilitation and reviving of the company as per guidelines. The operating agency was directed to examine the measures including the change of management, amalgamation of the company with other companies as stipulated under section 18 of the Act. Since the matter is seized by the first respondent in view of section 32 of the Act, the question of holding general body meeting in accordance with section 169 of the Companies Act does not arise. In other words, one of the shareholders supports the action of the first respondent directing the management not to effect any change of management till a view is taken on the rehabilitation of the company.

5. Sri <NAME>, who was elected as the managing director of the second respondent-company in the extraordinary general body meeting conducted on June 15, 1995, got impleaded himself in the writ petition and filed a counter-affidavit disputing the power of the first respondent to issue the impugned proceedings.

6. Mrs. <NAME>, wife of late <NAME>, who was appointed as a director on November 27, 1994, also got impleaded as a party to the writ petition. She also adopted the stand that the first respondent is competent to pass the impugned proceedings.

7. Before referring to the issues raised by various parties the facts which are not disputed are as follows :

The managing director of the second respondent-company was Mr. <NAME>, who expired on November 20, 1994. There are eight directors on the board of directors, out of which six directors are nominated by the financial institutions and out of the remaining two directors are Mr. <NAME>, appointed by the shareholders and Mrs. <NAME>, wife of late Sri <NAME>, appointed on November 27, 1994, by the board of directors as an additional director. The second respondent has been declared as a sick industrial company by the first respondent under section 15 of the Act. The first respondent suggested a package for the purpose of reviving the second respondent-company under section 17(2) of the Act. However, the second respondent-company could not revive itself and, therefore, the first respondent by its order dated February 23, 1995, appointed <ORG> (<ORG>) as an operating agency and directed to prepare a scheme in Case No. 67 of 1989 in accordance with the provisions of the Act for the purpose of rehabilitating the second respondent-company. By the same order while appointing the <ORG> as an operating agency on the representation made by Mrs. <NAME>, stating that no managing director was appointed after the death of the managing director and the company proposing to hold an extraordinary general body meeting on March 16, 1995, and also offering to bring funds for the purpose of rehabilitation which was opposed by the co-promoters, the Board directed that "no change of management should be made at this stage till the Bench takes a view on the rehabilitation of the company." Thereafter, on March 14, 1995, on an application filed by Mrs. <NAME>, on March 13, 1995, complaining that despite a direction issued by the Board not to make any change in the management, the company was proceeding with the holding of the extraordinary general body meeting for the appointment of the managing director, the Bench passed the following order :

"The Bench has directed you and the board of directors of the company to ensure that the directions given by it at the hearing held on February 23, 1995, restraining the company from effecting any change in the composition of board of directors including top managerial personnel, should be strictly carried out and in the case of failure to comply with the directions <NAME>, company secretary, who has convened the extraordinary general meeting or any member of the board of directors of the company holding the extraordinary general meeting contrary to the orders of the <ORG> shall be liable for action."

8. The petitioner challenges the above proceedings on the ground that the action of the first respondent is contrary to the judgment of <ORG> in <CITATION> . . Counsel Submitted that under section 169 of the Companies Act it is an absolute right of the shareholders of the company to call for an extraordinary general body meeting and the action of the first respondent is contrary to section 169 of the Companies Act. Counsel also submitted that the first respondent has no power to restrain the company from holding the extraordinary general body meeting as the stage has not yet arisen. Section 32 of the Act, no doubt, says that the provisions of the Act have application notwithstanding anything contained in the Companies Act , but it will be applicable only from the stage when the scheme is framed and not at the stage before framing of the scheme. Counsel submitted in this case the first respondent appointed the <ORG> and the <ORG> has not yet framed the scheme and it is in the process of framing the scheme and, therefore, the impugned proceedings are without jurisdiction and are liable to be set aside.

9. The question, therefore, is whether the first respondent is competent to issue the impugned proceedings directing the second respondent-company not to make any change in the management of the company.

10. In order to consider the issue, it is necessary to refer to the provisions of the Act. The Sick Industrial Companies (Special Provisions) Act , 1985, was constituted for the purpose of detecting the sick and potentially sick companies owning industrial undertakings and to determine preventive, ameliorative, remedial and other measures and for expeditious enforcement of those measures. Section 4 of the Act provides for appointment of a <ORG> known as <ORG> to exercise the jurisdiction and powers and discharge the functions and duties conferred or imposed on the <ORG> by or under the Act. It consists of a chairman and not less than two and not more than fourteen other members, to be appointed by <ORG>. An appeal lies against the decision of the <ORG> to <ORG> constituted under section 5 of the Act. <ORG> consists of a chairman and not more than three other members, who is or has been a judge of <ORG> or who is or has been a judge of <ORG> for not less than five years, and a person who is or has been a judge of <ORG> or who is or has been an officer not below the rank of secretary to <ORG> or who is or has been a member of the <ORG> for not less than three years respectively. Section 13 provides for the procedure of the <ORG> and <ORG>. Under section 14 , the proceedings before the <ORG> or <ORG> are deemed to be judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. Section 15 provides for a reference to be made to the <ORG> where an industrial company has become a sick industrial company, the board of directors of the company within sixty days from the date of finalisation of the duly audited accounts of the company for the financial year as at the end of which the company has become a sick industrial company for the purpose of determining the measures to be adopted for its revival. Under section 15(2) , <ORG> or <ORG> or <ORG> or a public financial institution or a State level institution or a scheduled bank is authorised to make a reference to the <ORG> for determination of the measures to be adopted if it has reason to believe that any industrial company has become sick. On such reference having been made the <ORG> has to make an inquiry under section 16 for determining whether any industrial company has become a sick industrial company. The <ORG> is also competent to entrust the inquiry to an operating agency and requesting the operating agency to submit a report. The <ORG> is also empowered to appoint a special director notwithstanding anything contained in the Companies Act under section 16 pending inquiry into the sickness of the company either by itself or by the operating agency. Under section 17 , the <ORG> is empowered to make suitable orders on the completion of the inquiry. Under section 17(1) , after making an inquiry under section 16 if the <ORG> is satisfied that a company has become a sick industrial company it shall after considering all the relevant facts and circumstances, decide by order in writing whether it is practicable for the company to make its net worth positive within a reasonable time. The <ORG> shall by order in writing and subject to such restrictions or conditions as may be specified in the order, give such time to the company as it may deem fit to make its net worth positive. Under sub-section (3) of section 17 , if the <ORG> decided under sub-section (1) that it is not practicable for a sick industrial company to make its net worth positive within a reasonable time and that it is necessary or expedient in public interest to adopt all or any of the measures specified in section 18 in relation to the said company it may, as soon as may be, by order in writing, direct any operating agency specified in the order to prepare, having regard to such guidelines as may be specified in the order, a scheme providing for such measures in relation to such company. Under section 18 the operating agency has to prepare a scheme providing for various measures mentioned in the said section. Under section 32 , the provisions of the Act and of any rule or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act , 1973 , and the Urban Land (Ceiling and Regulation) Act , 1976 , for the time being in force or in the memorandum or articles of association of an industrial company or in any other instrument having effect by virtue of any law other than this Act.

11. The scheme of the Act is, therefore, in the case of a sick industrial company, the board of directors of the company have to make a reference to the <ORG> for the determination of the measures to be adopted for its revival. On a reference being made under section 15 either by the board of directors or the <ORG> or <ORG> or the State <ORG> or a public financial institution or a State level institution or a scheduled bank, the <ORG> has to hold an inquiry or it may appoint an operating agency for the purpose of holding an inquiry to determine whether the company has become a sick industrial company or not. On such inquiry being made and on consideration of the relevant facts and circumstances of the case and the report submitted by the operating agency if the <ORG> is of the view that the company can be revived on its own a reasonable time should be given for making its net worth positive. This is known as package under section 17(1) of the Act. If the company fails on its own or fails to make its net worth positive, within a reasonable time mentioned in the package, the <ORG> has to appoint an operating agency for the purpose of preparing a scheme for its revival. The operating agency taking into account various circumstances has to suggest measures for its revival. One of the measures to be suggested by the operating agency under section 18 is the change of management of the company. Under section 14 of the Act, the proceedings before the <ORG> are judicial proceedings, and the provisions of the Act will apply under section 32 of the Act notwithstanding anything contained in any other law for the time being in force except the provisions of the Foreign Exchange Regulation Act , 1973 , and the Urban Land (Ceiling and Regulation) Act , 1976 .

12. The facts narrated above disclose that a reference was made by the second respondent-company to the first respondent and the first respondent after holding an inquiry under section 16 of the Act found that the second respondent is a sick industrial company, suggested a package to make its net worth positive within a reasonable time by its order dated October 30, 1990. However, the second respondent-company could not revive itself and, therefore, by its order dated February 23, 1995, the first respondent reviewed its order and appointed <ORG> as the operating agency for the purpose of framing a scheme under section 18 of the Act. While doing so, the Board directed the second respondent not to bring about any change in the management which was confirmed by its proceedings dated March 14, 1995.

13. However, in spite of the directions issued by the first respondent not to effect any change in the management, the shareholders called for an extraordinary general body meeting for the purpose of electing the managing director and, in fact, the election was held on May 16, 1995, and <NAME>, one of the respondents who was sought to be impleaded was elected as managing director.

14. From the facts referred to above, on a reference being made under section 15 of the Act, the <ORG> is seized of the matter. When the <ORG> is seized of the matter by virtue of section 32 , the provisions of the Act will prevail notwithstanding anything contained in section 169 of the Companies Act. The argument of learned counsel for the petitioner that section 32 will apply only after the framing of the scheme under section 17 read with section 18 cannot be countenanced as the first respondent enters the picture the moment a reference is made by the board of directors of the company under section 15 or by any financial institutions referred to in section 15(2) for determining the measures to be adopted for reviving the company. The interpretation sought to be placed that section 32 is applicable only when a scheme is framed in accordance with section 17(2) read with section 18 by the operating agency cannot be accepted in view of the express language that "the provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force." On the facts of the instant case, a reference was made by the board of directors of the company, an inquiry was conducted and the first respondent found that the company is a sick company and suggested a package and the company could not revive itself and, therefore, the <ORG> appointed the <ORG> as the operating agency. In other words, the company, i.e., the second respondent-company invoked the provisions of the Act by making a reference under section 15 of the Act. The first respondent is seized of the matter when a reference is made under section 15 of the Act. The Act is applicable from the day on which a reference is made under section 15 of the Act, i.e., the first stage. It does not say that the provisions of this Act shall have effect after the framing of the scheme. If the intention of the <ORG> is to give effect to the provisions of the Act notwithstanding anything contained in any other law only after the framing of the scheme then the section would have been differently worded. On the face of the language used in the section, it cannot be said that the provisions of this Act will effect notwithstanding anything inconsistent in any other law only after the framing of the scheme and not before that.

15. The next question to be considered is, whether the <ORG> is exercising quasi-judicial powers? I have already pointed out that an appeal lies to <ORG> from the decision of the <ORG> under section 25 of the Act. The <ORG> or <ORG> shall, for the purposes of any inquiry or for any other purpose under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying suits as well as <ORG> are conferred with the powers of the Civil Procedure Code, 1908, namely, summoning and enforcing the attendance of any witness and examining him on oath; the discovery and production of document or other material object producible as evidence; the reception of evidence on affidavit and requisitioning of any public record from any court or office; the issuing of any commission for the examination of witness and any other matter which may be prescribed. I have already pointed out that under section 14 of the Act the proceedings before the <ORG> or <ORG> shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. The question, therefore, is whether the <ORG> can be held to be exercising quasi-judicial powers on the ground that the provisions of the Civil Procedure Code were made applicable for various purposes mentioned in section 13(3) of the Act and that the proceedings before the <ORG> are judicial proceedings within the meaning of sections 193 , 228 and 196 of the Indian Penal Code and that an appeal lies to <ORG> against any order of the <ORG>. In this context a classic judgment in <ORG> v. Federal Commissioner of Taxation  AC 275 is relevant, wherein it was observed :

"1. A <ORG> is not necessarily a court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a court. 6. Nor because it is a body to which a matter is referred by another body. See <NAME> v. <ORG> [1924] 1 KB 171."

16. The above, no doubt, are the negative propositions for the purpose of determining whether it is a court or a <ORG>.

17. The next decision is the judgment in Cooper v. <NAME> [1937] 1 KB 309. The relevant observations are as follows :

"In the Report of the Minister's Power Committee (Command Paper 4060 of 1932), P. 73 (S. III, Para. 3) an attempt was made to define the words 'judicial' and 'quasi-judicial' : 'A true judicial decision pre-supposes an existing dispute between two or more parties, and then involves four requisites : (1) The presentation (nor necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally pre-supposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister's free choice."

18. The next decision to be considered is <ORG> <CITATION> , 69 CLR 185. The brief facts of the case are as follows :

The Women's Employment Regulations set up <ORG>, with power to decide whether females may be employed on certain classes of work and to decide matters with respect, inter alia, to their hours and conditions of employment and their rates of pay. The board's decision is to be binding on specified employers and employees and organizations of employees and upon being filed in <ORG> is to have effect as if it were an award or order of that court. Regulation 5c in its original form (as inserted into the Regulations by Statutory Rules 1943, No. 251) authorized committees of reference to determine, in relation to the decisions of <ORG>, certain facts - namely, facts as to what females are or were employed on work specified in a decision of the board and as to the nature of the work upon which they are or were employed. The regulation made the determinations of committees binding on the employers and on females specified in the determinations, but by amendment made by Statutory Rules, 1944, No. 42, this provision was replaced by a provision that a determination of a committee should be deemed to form part of the decision of the board in relation to which it was made. It was held that neither in its original form nor as amended did regulation 5c have purport to confer judicial power upon committees of reference. The observations made by the majority was :

"These considerations are not conclusive of the case. An industrial award lays down rules of conduct for the future. It does not purport to ascertain and enforce existing rights; it is directed to the creation of new rights."

19. The next decision to be considered is the judgment in <CITATION> ., . The majority, after referring to the judgments in <ORG> v. Federal Commissioner of Taxation  AC 275, <NAME> v. <NAME>  1 KB 309 and <ORG>. <CITATION> , 69 CLR 185, held that the industrial tribunal is directed within the meaning of article 136 of the Constitution of India. The relevant observations are as follows (p. 196) :

"Such a dispute concerns the rights of employers and employees. Its decision affects the terms of a contract of service or the conditions of employment. Not only may the pecuniary liability of an employer be considerably affected by the adjudication of such dispute but it may even result in the imposition of punishments on him ....

It is difficult to conceive in view of these provisions that the industrial tribunal performs any functions other than that of a judicial nature. The tribunal has certainly the first three requisites and characteristics of a court."

20. It follows from the above decision that the fact that the <ORG> hears the witnesses on oath or that an appeal is provided against the order of the <ORG> or because it gives decisions which affect rights of the parties does not make it a quasi-judicial body. The <ORG> ascertains on a reference made under section 15 of the Act either by the financial institutions of the <ORG> or <ORG> or <ORG> or the board of directors whether a company is a sick company and determine the measures to be adopted for its revival. The <ORG> may delegate the power to an operating agency to inquire into and report as to the sickness of the company. If, after making such an inquiry under section 16 of the Act, the <ORG> is satisfied that the company has become sick, it may give an opportunity to the company to make its net worth positive within a reasonable time. If the sick company fails to revive itself on the opportunity given by the <ORG>, the <ORG> may appoint an operating agency to suggest measures of revival under section 18 of the Act. The operating agency is appointed under section 17(3) of the Act. One of the measures of revival is any change in the board of directors. Therefore, though, no doubt, the <ORG> comes into the picture only on an application made to it by the board of directors of the company or <ORG> or <ORG> or a <ORG> Government or a public institution or a <ORG> level institution or a scheduled bank, the <ORG> does not decide any dispute between the institutions referred to above or the company as under section 15 of the Act. The object of reference is to ascertain whether the company is sick within the meaning of the Act. As stated in the earlier paragraphs, is suggests a package for its revival to relieve it of its sickness and after it fails to revive itself on the package suggested by the <ORG> the scheme is prepared. Therefore, the <ORG> while determining whether a company is a sick company does not exercise any judicial or quasi-judicial powers. In the language of <ORG>, it lays down the rules of conduct for the future. It does not purport to ascertain and enforce existing rights. Perhaps it is directed to the creation of new rights. Therefore, the <ORG> does not exercise quasi-judicial powers. If the <ORG> does not exercise quasi-judicial powers the question of exercising implied or inherent power in the interest of the company does not arise. In other words, the <ORG> exercises only an administrative function of ascertaining the sickness of the company and framing of a scheme for the purpose of its revival. However, under section 18(1)(f) of the Act while framing a scheme for the purpose of reviving of the company the <ORG> may exercise such incidental, consequential or supplemental measures as may be necessary or expedient in connection with or for the purposes of the measures specified in clauses (a) to (e). As pointed out, section 18 comes into the picture only when a scheme is framed. Before the scheme is framed the question of exercising incidental, consequential or supplemental measures does not arise. Evidently on the facts of the present case, the scheme has not yet been framed. It is only in the process of framing the scheme. In the light of the view that the board only exercises administrative powers, namely, ascertaining the sickness of the company and suggesting a package for its revival and appoints an operating agency for the purpose of framing a scheme, the board cannot exercise any incidental or consequential or supplemental measure of directing the company not to effect any change in the management. Therefore, the impugned action is outside the scope of sections 15 , 16 and 17 of the Act. Thus it follows from the above that the impugned proceeding is without jurisdiction. In the light of the above, there is no other alternative except to allow the writ petition.

21. The writ petition is accordingly allowed. No costs.


JUDGMENT <NAME>, J.

1. This is an appeal by the defendant who has been directed by the decree of the lower Court to pay certain sums of money to the plaintiff, his son, towards maintenance. The plaintiff is an adult and is not under the Hindu Law ordinarily entitled to enforce payment of maintenance as a "personal" obligation of the father. Where the father is in possession of joint family property, the adult son is entitled to be maintained from out of the income of the joint family property but it is doubtful if he can maintain a suit for maintenance against the father when he could as well sue for partition. Where the property in the father's possession is impartible the son would not, even if the impartible estate be joint family property, be entitled to sue for partition and in such cases a suit for maintenance has been permitted.

2. In the present case the plaint proceeded on the footing that the defendant was in possession of the Uttumalai Zamindari in some character other than that of separate property. The plaint also alleged that there was an immemorial and well-known custom prevalent in the Uttumalai Zamindari and all other Zamindaris according to which a person in the position of the plaintiff was entitled to maintenance. The defendant denied that the plaintiff was entitled to maintenance. He asserted that the Uttumalai Zamindari must be regarded as separate property in his hands and not as joint family property out of which the plaintiff can claim maintenance. He also denied the existence of the custom alleged in the plaint; and, in paragraph 2 of the additional statement filed on the 17th December, 1930, it was distinctly asserted:

No such custom has hitherto been recognised in judicial decisions at any rate when the impartible estate is the self-acquired property of the holder.

3. In the rejoinder filed by the plaintiff in answer to this statement no new information was vouchsafed, but it was asserted that <ORG> was in no sense the self-acquired property of the defendant.

4. On these allegations, issues were framed, of which it is sufficient to refer to issues 2, 3 and 4. Issue 2 raised the question whether the Uttumalai Zamindari was the joint family property of the parties or the sole property of the defendant. The lower Court rightly found that the property was the separate property of the defendant because he got it by inheritance from his sister's adopted son. This finding has not been attacked before us and it is unnecessary to say more on this issue.

5. The fourth issue was to the effect, "Is that custom true?". It is to be regretted that the issue was framed in a form which did not bring out the nature of the custom pleaded or required for the purposes of the case. The point really in controversy between the parties on the question of custom was whether there was a custom to pay maintenance even when the property is not held by the holder for the time being, as joint family property; if it was joint family property, the right of the first generation of descendants to maintenance, has not been disputed. This way of framing issue No. 4 has led to an obvious mistake in the treatment of the case in the lower <ORG> as we shall presently show.

6. The third issue ran as follows:

If the second issue is found for the defendant, is plaintiff entitled to have that Zamindari taken into consideration in the fixing of the maintenance allowance to be awarded to him assuming the custom alleged by him to be true?

7. Issues 1 to 3 were heard as preliminary issues. On the third issue the learned Subordinate Judge curiously enough said that the defendant had made no distinction in his additional written statement as between Zamindaris which are held as joint family properties and Zamindaris which are self-acquisitions so far as the allegation as to the custom was concerned. He forgot that the plaint itself made very little differentiation between judicial decision and custom and the written statement accordingly followed the same lines. It is however obvious from the paragraph which we have already quoted from the additional written statement that the defendant did insist that the plaintiff was not entitled to maintenance if the Court should hold that the Zamindari in his hands was not joint family property.

8. The learned Subordinate Judge disposed of issue 3 in two sentences which we have had great difficulty in understanding. He said:

Their Lordships of the Privy Council have referred in <CITATION> (1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to the expression of opinion in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.), though that expression of opinion has been stated in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) to be obiter. Consequently I have to find the issue for the plaintiff.

9. The learned Counsel who appeared for the respondent before us has explained this judgment of the learned Subordinate Judge to mean that according to the observations of their Lordships in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) the son of the holder of an impartible estate has been recognized to be entitled to maintenance without the necessity of proving the custom in each case and as that decision proceeds upon the footing that in an impartible estate there are neither coparcenary rights nor any of the incidents relating to joint family property, the observations justify the award of maintenance to the son irrespective of the question whether the impartible estate in the possession of the father is joint family property or separate property. The learned Judge however recognised that Lord <NAME> himself in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 at 243 and 244 (P.C.) stated that many of the observations in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) might have to be ragarded as obiter. But as reference has been made in Pro tap <CITATION> (1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) he thought he must follow the dictum in that case.

10. When the case came on before another Judge for the trial of the other issues in the case, the learned Counsel for the defendant asked for a separate trial and finding in respect of Issue No. 4. But the then Judge felt himself precluded from dealing with the question because of what he considered to be the implication of the finding already recorded by his predecessor on the third issue. He was good enough, however, in justice to the defendant, as he says, to refer to some of the contentions raised before him, but refrained from giving a finding on the point. Feeling himself precluded from dealing with the question of the plaintiff's right to maintenance, the new Subordinate Judge practically confined himself to the question of the amount of maintenance and other incidental matters.

11. In the course of the argument before us, Mr. <NAME> has drawn our attention to the relevant decisions of <ORG> and of all the Courts in India. More than one recent judgment of their Lordships has attempted to state with precision the result of the cases relating to impartible estates; it is therefore not necessary for us to refer to earlier decisions. Taken out of its context, the observation in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is no doubt capable of being understood in the way that the learned Subordinate Judge understood it. But a perusal of the whole judgment and a consideration of their Lordships' later judgments will show that that view is not correct.

12. It is unnecessary for the purposes of this case to discuss the exact basis of the decision in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) because in the later decisions in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) and <CITATION> (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.), their Lordships have themselves attempted to state the position with the necessary qualifications. It is sufficient to refer to the observation in <CITATION> (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.) that it has been clearly shown:

That there is now no reason why the earlier judgments of the <ORG> should not be followed, such as, for instance, the <NAME> case, <CITATION> (1900) 10 M.L.J. 294 : L.R. 27 I.A. 151 : I.L.R. 24 Mad. 147 (P.C.), which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family.

13. We may also add that the observation in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) that has been relied on by the learned Subordinate Judge and by the learned Counsel for the respondent before us does not itself purport to declare the right to maintenance but merely refers to the basis on which the right recognised in the earlier cases in respect of maintenance might be based, the suggestion being that custom rather than joint family right might be regarded as the basis. It was obviously not the effect or the intention of the sentence to recognise the right to maintenance in cases where no such right has been recognised in the earlier cases. Mr. <NAME> admitted before u§ that in none of the earlier cases relating to impartible Zamindaris has the <ORG> recognised a right in an adult son to claim maintenance from the impartible Zamindari in the hands of the father even when it was not joint family property.

14. We may refer in this connection to an observation in Sir <NAME>'s book, 8th Edn. at page 611 where a sentence from <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is reproduced without the context in which it occurs. As it stands, the statement in the book is capable of being misread as supporting a general right to maintenance in favour of the son irrespective of the question whether the impartible estate in the father's hands is joint family property or not. <CITATION> (1934) 67 M.L.J. 306 : I.L.R. 57 Mad. 1023 (F.B.) a Full Bench of this Court affirmed the principle that the right to maintenance which the son of the holder of an impartible Zamindari possesses is only an incident attaching to its character as joint family property.

15. The observations in <NAME> v. <NAME> (1879) I.L.R. 5 Cal. 256 are likewise capable of being misunderstood if the context is ignored. The antethesis drawn in that judgment was between claims by the younger sons against their elder brother on the one hand and claims by the descendants of the younger brother against their uncle. The son's claim against the father was not then before the <ORG>. It is obvious that when one of three brothers inherits an impartible estate from the father, it would be an estate where the younger brothers had lost their right of succession only by reason of its impartibility. In such circumstances the <ORG> thought that the younger sons would be entitled to maintenance without proof of special custom, but they added that as regards members belonging to a lower generation there must be definite proof of custom.

16. We may refer in passing to the way in which the matter has been dealt with in a recent enactment of <ORG>. In Madras Act XII of 1934 which attempted to declare the law as it has been understood even prior to the decision in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.) and in conformity with the latest pronouncements of their Lordships as regards the true character of impartible estates, the second section which pro-pose's to add Section 9 to the Impartible Estates Act of 1904 is limited to cases where the estate has for the purpose of succession to be regarded as the property of the joint family. There is accordingly no warrant for Mr. <NAME>'s suggestion that there is a kind of consciousness in this presidency that a <NAME>'s son should be entitled to maintenance from his father irrespective of the question whether in the father's hands the <NAME>i is joint family property or not. It is not suggested that the evidence in this case establishes any custom to that effect. The decision of the lower Court in favour of the plaintiff is accordingly unsustainable.

17. Mr. <NAME> suggested two other grounds in favour of the plaintiff's claim, on

18. The offer in the written statement is more in the nature of a voluntary undertaking and does not amount to any admission of a legal right; that undertaking is coupled with onditions which no Court of law can enforce, namely, that the plaintiff should behave in a particular way and be amenable to the defendant. No decree could be founded on such an offer.

19. The appeal must accordingly be allowed and the suit dismissed with costs both here and in the <ORG> below.