JUDGMENT

1. The execution was not complete as long as the purchaser had not secured possession, His application therefore may fairly be called an application to take a step-in-aid of execution <CITATION> . 27 Calc. 709. We must reverse the order and remand the case for disposal. The costs of this appeal will abide and follow the result.


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

1. This is an appeal from a decision of Mr. Justice <NAME>, and it raises a question as to the basis upon which the plaintiffs, <ORG>, ought to be charged under the Sea Customs Act, 1878. Section 29 of that Act provides that-

On the importation into, or exportation from, any customs-port of any goods, whether liable to duty or not, the owner of such goods shall, in his bill of entry or shipping bill, as the case may be, state the real value, quantity and description of such goods to the best of his knowledge and belief.

2. Then Section 30 deals with the manner in which the real value has to be ascertained, and is in the following terms:-

For the purposes of this Act the real value shall be deemed to be-

(a) the wholesale cash price, less trade discount, for which goods of the like kind and quality are sold, or are capable of being sold, at the time and place of importation or exportation, as the case may be, without any abatement or deduction whatever, except (in the case of goods imported) of the amount of the duties payable on the importation thereof : or

(b) where such price is not ascertainable, the cost at which goods of the like kind and quality could be delivered at such place, without any abatement or deduction except as aforesaid.

3. It is rather curious that both sub-sections refer to price or cost of goods of the like kind and quality, and do not refer to the actual goods, the subject of the transaction in question; but it is conceded that where there is a sale falling within the terms of Sub-section (a) of specific goods, the price of those goods is the real value, and it is not necessary to consider the price of other goods of the like kind and quality. Perhaps a literal reading of the section can be complied with by saying that specific goods must be of the like kind and quality to themselves. It is clear also that Sub-section (b) "only applies where you cannot ascertain the wholesale cash price referred to in Sub-section (a). The section was recently construed and discussed by <ORG> in the case of <CITATION> for India (1932) L.R. 59 I. A. 258 : s.c. 34 Bom. L.R. 1057. The actual decision in that case was only that where you have a sale by the importer in bulk of goods to the actual user, the price charged is not a wholesale price, because there is no retail price in such a case, there being only a dealing direct between the importer and the consumer without the intervention of a dealer. So that the actual decision does not affect this case, in -which there is no question of there being a wholesale price. But certain dicta of their Lordships are relied upon as to the meaning of Sub-section (a), particularly the view expressed that the price must be free from any loading or any post-importation charges incurred in relation to the goods, and that the price is to be a price for goods as they are both at the time and place of importation. Their Lordships do not define what is meant by " time and place of importation "; and I think we must give a reasonable construction to the words. Plainly, time cannot refer to the precise moment of time at which goods are imported, that is unloaded from the ship. There must be a reasonable time in which a sale can take place. I think also that " place of importation" cannot mean the exact spot of land on which goods are landed, whether on the wharf or on the shore. It must cover a wider area than that; .and I should say that, generally speaking, " place of importation " means the place, whether Bombay, Madras, Karachi, or elsewhere as the case may be, at which the goods are imported. No doubt the phrase " time and place of importation " must be considered in relation to the particular facts of any given case. I agree with Mr. <NAME>'s argument that in dealing with commodities, the market price of which may vary from day to day, one would have to take the price ruling on the day of importation in considering the price at which goods of a like kind and quality were capable of being sold.

4. Now, the facts of the present case, so far as relevant, are these. The plaintiffs are importers into India of <ORG> motor cars. They acquire them from the manufacturing company in Canada. It is not, I think, necessary to discuss in any detail the terms of their dealings with the manufacturing company. They order from the manufacturing company such number of cars as they require, and the appellants are charged free on board the Canadian port. The manufacturers pay the freight and insurance in the first instance, but debit those charges against the appellants. The important matter to consider is what the dealings are between the plaintiffs and their customers in India. The evidence is that the plaintiffs are mere importers. They arrange for the sale of the cars in India through various agents. They have one principal agent in Bombay city, namely the <ORG> Automobiles (India) Ltd., and they have other distributing agents in other parts of India. What happens in practice is this. The various distributing agents in India inform the plaintiffs what their requirements will be for the purchase of cars, and at intervals, say once or twice a month, the plaintiffs send to Canada an order for such number of cars as their distributing agents have intimated that they are ready to take. The price which the distributors pay is not fixed, or indeed discussed, at the time when the order for a car is given; but when the car arrives in Bombay the plaintiffs fix the retail price at which the different models are to be sold in India. That price is published in a list which is available to all the dealers, and the price which the plaintiffs charge to the dealers is that retail price less twenty per cent. The evidence as to all these matters is that of Mr. <NAME>. He has produced unfortunately very few documents, but it is common ground that his evidence is entirely reliable. As soon as the cars arrive in Bombay, the dealers are notified, and they then have to come and pay the price which, as I said, they ascertain from the price-lists supplied to them. They have to pay that price in cash, and then they take delivery of the goods. If the dealer is in Bombay, delivery is made at his place of business. If the dealer is at some other place, then delivery is made at the appropriate railway station in Bombay, and the price-lists show that the prices are f.o.r. main ports of entry. The evidence of Mr. <NAME> is quite clear that the plaintiffs never deliver the -cars until they get payment, and that the goods are usually delivered within two or three days of landing. It seems to me that the sale, therefore, is at the time and place of importation. Mr. <NAME> argued that the sale was not at the time of importation, because the real sale took place at the time when the dealer gave his order which resulted in the goods being ordered by the plaintiffs from Canada. But apart from the fact that Mr. <NAME> admitted that there was no concluded agreement at that date, it seems to me 'quite impossible in law to suggest that there was an actual contract of sale at that date. The goods were not ascertained, and probably not even manufactured, and there is no evidence that the price was agreed to, or that any method of ascertaining the price was agreed to. In my opinion, the only contract of sale which took place,-and it is only a contract for sale which is relevant for the present purpose,- was the contract which was completed when the dealers were notified of the arrival of their goods and the price to be paid, and when in pursuance of that notification they paid the price and the goods were delivered. It seems to me that that transaction amounts to a sale which took place at Bombay, the place of importation, and at the time of importation, that is to say, within a reasonable time, one or two days after the actual landing of the goods.

5. The only other question to be determined in order to bring the case under Sub-section (a) is whether the price was a wholesale cash price for the goods. It is obvious, I think, that it was a wholesale price, because there is a plain distinction here between the retail price fixed for the dealers, and that price less twenty per cent, which the dealers have to pay, the latter price being the wholesale price. There is no question of any trade discount in this case, because it was a net price, and I think the words in the section " less trade discount " mean " less trade discount, if any ". It is also quite plain that the price was a cash price, and that is not disputed. So that taking the words of the section as they stand, it seems to me that this case plainly falls within the exact words of Sub-section (a), provided that the price was the price of the goods. Mr. <NAME> argues that the sale does not fall within the words of the subsection as construed by <ORG> in the case to which I have referred, because the price includes certain post-importation charges, and is not therefore, the price only of the goods. The learned Judge in the <ORG> below agreed with that view and held that there are two items of post-importation charges, for which some deduction must be made from the sale price in order to ascertain the wholesale cash price. To that part of the decision there are cross-objections, and I think those cross-objections must prevail. In my view, the <ORG> has to find a sale of the goods at a wholesale cash price, and it is not legitimate to dissect the actual price paid, deduct from it such portions as may be ascertained to represent something other than the price of the goods, e.g., the cost of service, and then say that the residue left is the wholesale cash price of the goods. Non constat that the actual goods or other goods of a like kind and quality could be sold at all apart from the services.

6. The two items to which the learned Judge refers, are a charge for assembling the cars and cartage charges. As to the first, the evidence of Mr. <NAME> is not very clear, but on the whole I think that it comes to this, that the plaintiff-company had to deliver the cars in running order, that they were not in a position in 1929, when the transaction in suit took place, to assemble the cars themselves, and, therefore, they used to make a fixed allowance to the dealer of Rs. 13-8-0 per car to cover the cost of assembling the car. There is no dispute that that deduction was properly made from the wholesale cash price, and it seems to me that that does not affect the question as to there being a wholesale cash price. What it really comes to is that the wholesale cash price for a car in running order is reduced by a small sum by an arrangement between the two parties, because the car delivered is not in the condition specified. That does not prevent the sale being a sale of the car at a wholesale cash price. It is merely an agreed deduction made from the price on account of the goods not being in accordance with the contract requirements.

7. With regard to cartage charges, the position is this. The plaintiffs have to-deliver the car, as I have said, either at the place of business of the dealer if he carries on business in Bombay, or at the appropriate railway station if the dealer carries on business upcountry. There is no express provision as to the inclusion in the price of cartage charges. Exactly the same price is charged to everybody, whether the place of business of the dealer is near the port, or at the other end of Bombay. What it really comes to is that the contract is for the sale of a car deliverable at a particular place in Bombay, and it seems to ire that cost of getting the car to that place in Bombay is a part of the purchase price of the car. We must, in my opinion, take a business view of the transaction and determine whether the sale price is in a business sense the price of the goods or includes a charge for services rendered which prevents the price being fairly considered to be the price of the goods. Mr. <NAME> did not confine his argument to post-importation charges, though he laid more emphasis on them having regard to the views expressed by <ORG>, but in opening the case he complained that the price charged by the plaintiffs covered the overhead charges of the plaintiffs, e.g., office expenses and advertisement charges, as well as the plaintiffs' profit, and he said, with a certain amount of force, that it was rather hard to be taxed on those charges. The answer to that is that we have to construe the Act. Every normal sale between merchants must show a profit to the vendor, and, therefore, cover his overhead charges, but these are really pre-importation charges. The fact that the price also includes some slight post-importation service, such as free delivery within the place of importation, cannot in my opinion operate to prevent the sale price being held to be for the price of the goods.

8. In my opinion, the facts proved in this case show that there was a sale exactly conforming to all the requirements of Sub-section (a) of Section 30, and that being so, we are bound to hold that the assessment of the plaintiffs under that sub-section is correct, and their suit for a declaration that the basis is incorrect and for the refund of moneys paid by them on that basis fails.

9. The order of the lower Court will be varied by merely dismissing the plaintiffs' suit with costs. Apart from that the appeal fails and must be dismissed with costs. Cross-objections allowed with costs.

<NAME>, <NAME>

10. I am of the same opinion. In the case of <CITATION> for India (1932) L.R. 59 I. A. 258 : s.c. 34 Bom. L.R. 1057, their Lordships of <ORG> observed that a wholesale cash price may be found in the actual sales of the goods by the persons themselves who are sought to be charged, if there are no other goods of a like kind and quality. Mr. <NAME> has conceded that if the goods which are the subject-matter of this appeal were in fact sold at a wholesale price, less trade discount, that sale may itself establish that goods of a like kind and quality are capable of being sold at a wholesale cash price, less trade discount. He, however, contended that the goods in question were not sold for a wholesale cash price, less trade discount, at the time and place of importation within the meaning of Section 30, Sub-section (a), of the Indian Sea Customs Act.

11. Mr. <NAME> first contended that the sale between the plaintiffs and their retailers took place at the time when the orders were, according to the evidence of Mr. <NAME>, placed with the plaintiffs, that, is to say, some two or three months before the goods could arrive in Bombay. It is, I think, plain that the orders so placed, pursuant to which the plaintiffs themselves ordered goods from the manufacturers, were merely of the nature of agreements to buy and sell, and that they could not and did not become agreements of sale until the goods were manufactured and actually arrived in Bombay.

12. The question then arises : When did the sales between the plaintiffs and their retailers actually become effective ? Did they become effective at the time and place of importation, it not being disputed that they were sales of a wholesale character ? The evidence of Mr. <NAME> is that the prices were not fixed at the time the orders were placed, that the prices could be changed by the plaintiffs as they liked, that they were from time to time changed and were published in price-lists which were available to persons in the trade. According to Mr. <NAME>, the price became fixed on the arrival of the goods, and the retailers who had placed orders with the plaintiffs knew what the price payable by them was on arrival by looking at the published price-list, which was the price list in circulation at the time of the arrival of the goods; and according to Mr. <NAME>, the price becoming payable on arrival, no delivery would be effected of the goods until that price was paid. That being so, it seems to me clear that the sale became an effective sale upon the arrival of the goods, and the appropriation of those goods to the orders with the assent of both the parties, and the payment of the price by the retailers. The evidence further is that the price was paid within two or three days of the arrival, and delivery was effected on payment of the price. In Bombay delivery was effected by sending the cars to the place of business of the distributors. If delivery was to retailers in other places, delivery was effected by sending the cars to the railway station in question, the price-list showing that delivery was f.o.r. Bombay. That being the course of business, can that sale properly be described as a wholesale cash price at the time and place of importation ? Mr. <NAME> has contended that the sale must be one ex-ship, and that if anything remains to be done after the goods are actually put on the wharf, the sale cannot be said to be a sale at the time and place of importation. He says that delivery had to be effected by the plaintiffs to some place other than the wharf, and that that fact prevents the transaction being a wholesale transaction for a cash price at the time and place of importation. There is, however, nothing in the judgment of their Lordships of <ORG> in the <ORG> case, to which I have referred, which suggests that unless the transaction is for a wholesale cash price ex-ship, it cannot fall within Section 30, Sub-section (a); and in a decision of <ORG> in another case of the <CITATION> for India (1921) I.L.R. 47 Bom. 174 : s.c. 24 Bom. L.R. 198, both Macleod C. J. and Shah J. in the course of their judgments assumed that a wholesale disposal of the goods in the town of Bombay itself would fall within Section 30, Sub-section (a). In my opinion, there is no warrant for confining that section to a transaction which is effected merely on the wharf itself. It seems to me that a reasonable construction must be placed upon the words " at the time and place of importation ". In the present case, I am of opinion that the wholesale transaction for a cash price was completed at the time the goods arrived in Bombay and at the time the price was paid, that is to say, within two or three days of the actual arrival. It was a transaction entered into pursuant to orders placed on a wholesale basis, which contemplated that the price would be fixed at a future time in accordance with the price-list prevailing at the time of the arrival; and, in those circumstances, the mere fact that the delivery was not made until two or three days after arrival, and to places in the town of Bombay, cannot, in my opinion, prevent the transaction from being a wholesale transaction for cash, at the time and place of importation.

13. Mr. <NAME> has argued that Section 30, Sub-section (a), is intended to apply only to, what he calls, staple articles, such as rice, sugar and so forth, and that the goods which are the subject-matter of this case, namely, motor cars, are not of the class of goods which would fall within the sub-section. He relies on a passage in the judgment of their Lordships of <ORG> in <CITATION> for India, above referred to, which is in these terms (p. 266) :-

The wholesale cash price primarily in view is, they cannot doubt, that price current for staple articles, the amount of which, if not a subject of daily publication in the press, is easily ascertainable in appropriate trade circles.

Mr. <NAME> has argued that you could not easily ascertain the price at which motor-cars of this description were saleable. In my opinion, that is not in accordance with the evidence. The evidence is that price-lists were published from time to time, and that they were accessible to the traders; and, in my opinion, it is quite clear on that evidence that any retailers, who were desirous of placing orders with the plaintiffs, were in a position to know what prices were prevailing at the time they placed the orders, and also knew that if there were any variations in the price-lists at the time when the goods arrived, that would be the price which they would have to pay. I can see no reason why a wholesale cash price so ascertainable should not fall within the terms of Section 30, Sub-section (a).

14. Next Mr. <NAME> contended that there was no wholesale cash price at the time and place of importation in the case of the motor-cars in question, because, as he contended, that price was loaded by post-importation charges. First he referred to the cost of assembling the motor-cars on arrival; but it is to be observed that the cost of assembling the motor-cars was already included in the price itself beforehand. The plaintiffs conceded that there was an obligation upon them to deliver an assembled motor-car, but as it was inconvenient for them at that time to assemble the motor-cars themselves, with the assent of the purchasers, they made them an allowance for assembling the cars. The wholesale sale was already complete before the question of the assembling of the cars arose, and the prices had been paid. In my opinion, the fact that there was subsequently an allowance for the assembling of the cars and that the cars had to be assembled cannot prevent the price, which had already been paid, from being a wholesale cash price at the time and place of importation. In my opinion, no question of overloading the price by any post-importation expenses arises in connection with the assembling of the parts of the cars.

15. Next, Mr. <NAME> contended that the price was not a wholesale cash price at the time and place of importation, because it included a part of the overhead charges of the plaintiffs, which were necessarily referable, as he said, to what took place after the cars were imported. He said there would have to be advertisements, that the plaintiffs would have to maintain their office, . and charges and expenses would thus have to be incurred, and that they were referable to the wholesale cash price as between the plaintiffs and the defendant in this case. In my opinion, there is no warrant for that argument. The course of business, as established by evidence, in my opinion, shows that the plaintiffs maintained an establishment in Bombay and received orders from various customers for the purpose of enabling them to place orders with the manufacturers in Canada; and, in my opinion, all the overhead charges which were referable to the transaction between the plaintiffs and the defendant in this case had in fact been incurred before the arrival of the goods in this country. The wholesale cash price at the time and place of importation was in fact paid on the arrival of the goods; and, in my judgment, no charges, overhead or otherwise, were incurred by the plaintiffs subsequently in reference to the transaction in question.

16. The price-lists, which were issued by the plaintiffs themselves, in my opinion, themselves afford excellent evidence of the fact that there was a wholesale cash price at the time and place of importation. Those price-lists show that the price was a net price, f. .r. at the main ports of entry. They state the prices at which the retailers were allowed to sell to their customers; they state the discount of twenty per cent; and they state the distributors' net price payable as mentioned after deducting the allowances which the plaintiffs were prepared to make to the retailers in respect of the assembling of the cars. Those price-lists themselves appear to me to show, on the face of them, a wholesale cash price; and the evidence establishes, as I have already said, that the transaction was complete on the arrival of the goods, and the price paid within two or three days thereafter.

17. The learned trial Judge was of opinion that the <ORG> authorities had not made to the plaintiffs appropriate allowances in respect of certain overhead charges and cartage charges. The plaintiffs complain that the learned Judge was wrong in entering into the mathematical calculations as a result of which he said that the <ORG> authorities ought to have fixed the appropriate customs duties. The defendants also complain, by cross-objections, that the learned Judge was not entitled to come to the conclusion that the <ORG> authorities ought to have made those deductions. I can myself see no warrant whatever for those deductions. Either the price at which the plaintiffs sold the goods was a wholesale cash price at the time and place of importation, or it was not. If it was, then it is permissible to conclude that goods of a like kind and quality were capable of being sold at that price. But, in my judgment, it is not permissible to say that if the goods have been sold at a price, which was different from the price at which they were in fact sold, and was ascertainable only by certain mathematical calculations and deductions, that goods of a like kind and quality were capable of being sold at that price. There is no evidence whatever that goods of a like kind and quality were capable of being sold at a price fixed in this manner by the learned Judge. In my opinion, there was no justification for his holding that those deductions ought to have been made.

18. I, therefore, think that the appeal must be dismissed with costs, the cross-objections allowed with costs, and the suit dismissed with costs.


JUDGMENT <NAME>, J.

1. The short question that arises on this reference is whether borders woven on handloom out of pure silk, art silk and jari thread are handloom cloth within the meaning of entry 29 in Schedule A of the Bombay Sales Tax Act, 1959. The assessees are dealers registered under the Act and they carry on business as manufacturers and dealers in all kinds of sarees, blouse pieces, borders etc. The assessees in the course of their business sold certain borders at the rate of Rs. 3.50 per yard under a bill No. 965 dated 11th August, 1961, and submitted an application to the Deputy Commissioner of Sales Tax under section 52 for determination of the tax payable on the sale of the borders. The borders were woven on handloom out of pure silk, art silk and jari thread and the proportion or pure silk was more than 60 per cent. It was contended before the Deputy Commissioner of Sales Tax that the borders were exempt from tax inasmuch as they were handloom cloth covered by entry 29 of Schedule A. The Deputy Commissioner of Sales Tax, however, took the view that borders though woven on handloom were not handloom cloth within the meaning of that expression as used in entry 29 of schedule A and were taxable under entry 9 of Schedule E. The assessees thereupon preferred an appeal before the <ORG>. The same contentions which were urged before the Deputy Commissioner of Sales Tax were repeated before the <ORG>. The <ORG> held that the borders were handloom cloth within the meaning or entry 29 of Schedule A and the sale of the borders was, therefore, exempt from tax. The <ORG> being aggrieved by this decision of the tribunal preferred an application for a reference and on the application the <ORG> referred the following two questions for the opinion of the <ORG> :

"(1) Whether Indori borders containing more than 60 per cent. of pure silk and woven on handloom out of silk, art silk and jari threads are handloom cloth within the meaning of entry 29 in Schedule A to the Bombay Sales Tax Act, 1959 ?

(2) If the answer to question (1) above is in the affirmative, whether sale of such borders can be taxed as sale of goods falling within the ambit of entry 9 of Schedule E to the Bombay Sales Tax Act, 1959."

2. It will be seen from the frame of the questions that the second question would arise for consideration only if the first question is answered in favour of the assessee. But we may point out straightaway for reasons which will become apparent from what follows that if the borders can be said to be handloom cloth within the meaning of entry 29 of Schedule A, the sale of the borders would be exempt from tax and there would be no question of the <ORG> being entitled to tax the sale of the borders under entry 9 of Schedule E.

3. Schedule A contains entries specifying goods the sale or purchase of which is exempt from tax. This exemption is granted by section 5 which declares :

"(1) Notwithstanding anything in this Act, but subject to the conditions or exceptions (if any) set out against each of the goods specified in column 3 of Schedule A, no tax shall be payable on the sales or purchases of any goods specified in that Schedule.

* * *" Entry 29 of Schedule A specifies the following class of goods as exempt fro tax : "Handloom cloth of all varieties excluding pure silk cloth". 4. If, therefore, handloom borders fall within the expression "handloom cloth" as used in entry 29 of Schedule A, their sale or purchase would be exempt from tax notwithstanding that they fall within any entry in any of the other Schedules of the Act. As a matter of fact handloom borders of the type sold by the assessee would be covered by entry 9 of Schedule E which refers to the following class of goods : "9. Braids, borders, laces and trimmings when sold by weight at a price of not less than fifty naye paise per tola or when sold by length at a price of not less than fifty naye paise per yard."

and prescribes sales tax at the rate of eight naye paise in the rupee and general sales tax at the rate of two naye paise in the rupee on the sales of such goods. But despite that, the sale or purchase of handloom borders would be exempt from tax if they can be said to be handloom cloth within the meaning of entry 29 of Schedule A, for the exemption granted under section 5 is an overriding exemption which prevails notwithstanding anything contained in any other provision of the Act. The only question which, therefore, requires to be considered is whether handloom borders of the kind sold by the assessees are handloom cloth within the meaning of that expression as used in entry 29 of Schedule A. If they are, their sale would be exempt from tax but if they are not, their sale would be taxable under entry 9 of Schedule E.

5. Now what does "handloom cloth" in entry 29 of Schedule A connote ? Does it mean any fabric woven on handloom or does it have a limited meaning ? If the word "cloth" is given its primary and technical meaning, it would include any woven fabric and in that view any fabric woven on handloom would be handloom cloth and handloom borders being admittedly fabrics woven on handloom would be handloom cloth. But words often have a secondary or popular meaning and when that is the case, the principle to be applied in interpreting the meaning in which a word is used in a statute is to construe the word in its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it." <CITATION> ( 12 S.T.C. 286). The question which must be asked in such a case is, what is the meaning of the word in ordinary parlance; what do the people dealing with the subject-matter of the statute understand it to mean ? This is the principle which we must apply in the present case, for the word "cloth" has a secondary or popular meaning which is more limited than its primary technical meaning. As a matter of fact we had occasion to apply this principle to the interpretation of the word "cloth" in this very entry last year in <CITATION> ( 15 S.T.C. 437; 5 G.L.R. 191). In that case the question was whether carpets made of cotton yarn on handloom were included in the expression "handloom cloth" in entry 29 of Schedule A. The assessee contended that they were because in that event they would be exempt from tax; but the <ORG> contended that they were not. When the matter came before us on a reference made by the <ORG>, we applied the principle of interpretation to which we have just referred and held that carpets were not handloom cloth within the meaning of that expression as used in entry 29 of Schedule A. My Lord <NAME> delivering the judgment of the <ORG>, after referring to the decision of the Supreme <ORG> in <CITATION> ( 12 S.T.C. 286) and citing the observations of the Supreme <ORG> in that case laying down this principle of interpretation, asked the question :

"The question, therefore, is, what is the meaning of the word 'cloth' which people conversant with the subject-matter with which the statute is dealing, would attribute to it, that is to say, people dealing with handloom cloth of all varieties which is dealt with by entry 29 ? In other words, would a merchant dealing in handloom cloth regard a carpet as handloom cloth ? Though in the technical or technological maning given by a dictionary, a carpet is a woven fabric, can it be said that the <ORG>, while making Schedule A, preferred to give it such a dictionary meaning rather than the meaning attached to the word carpet in the ordinary and common parlance ......"

and answered it by saying - and these words are determinative of the question arising in the present reference -

"We think not. We are of the view that the <ORG> intended to give to the expression 'handloom cloth of all varieties' that meaning to this expression as understood in ordinary parlance, that is, as understood commonly by those conversant with and dealing in such cloth and not the general or technical connotation of the word 'cloth' as given in the various dictionaries ...."

6. He thereafter proceeded to apply this meaning to the facts of the case before us and concluded in the following words :-

"The expression 'cloth' has acquired a secondary meaning, that is to say, a meaning attached to that expression in common parlance by those dealing in and conversant with handloom cloth, and the carpet of the type we have before us would not, in our view, be included in the expression 'handloom cloth of all varieties'. On the principle laid down by <ORG> in <NAME> ([1961] 12 S.T.C. 286), and by <ORG> in the case of <NAME> ([1956] 7 S.T.C. 479), we would hold that the carpet in question would not be covered by entry No. 29. ..."

7. Having regard to these observations it is clear that the word "cloth" in entry 29 of Schedule A must be interpreted according to its secondary or popular sense and not in its primary or technical sense meaning any woven fabric by whatever name be it known or called in trade and amongst the people. Mr. <NAME>, learned Advocate appearing on behalf of the assessees sought to throw some doubt on the validity of this proposition by relying on another decision of this Court in <CITATION> . ( 15 S.T.C. 498). We however do not find anything in this decision which in any way militates against what we have stated above. The question in this case was whether hessian was cloth within the meaning of entry 1 of Schedule 1 to the Bombay Sales Tax Laws (Special Exemptions) Act, 1957, and a Division Bench of this Court considering of <NAME>, C.J., as he then was, and myself held that it was. What was pressed upon us was not that hessian was not cloth according to the secondary or popular meaning of the word but that the word "cloth" should be given a limited meaning so as to exclude hessian having regard to the object for which the Bombay sales Tax Laws (Special Exemptions) Act, 1957, was enacted. This argument was rejected by us and after referring to the observations of <ORG> in <NAME> case ( 12 S.T.C. 286), where the principle of interpretation to which we have referred a little while ago was enunciated, we applied that principle to the construction of the word "cloth" before us and observed that :-

"So construed, the word 'cloth', as used in Schedule I to the Exempting Act, would cover hessian, i.e., cloth manufactured from fibres of hemp or jute."

8. It will, therefore, be seen that far from rejecting this principle, we actually applied it in order to reach the conclusion that hessian was cloth within the meaning of entry 1 of Schedule 1 to the Bombay Sales Tax Laws (Special Exemptions) Act, 1957.

9. Mr. <NAME> then contended that even if it be true as a general principle that words used in a statute must be interpreted according to their popular sense, a sense in which they are commonly understood in ordinarily parlance, the application of that principle was displaced in the present case be reason of the express words of entry 29 of Schedule A. He urged that the entry referred to handloom cloth of all varieties and the words "of all varieties" were words of expansion which indicated the width and amplitude of what was connoted by the expression "handloom cloth" and showed that the expression was used in its wide primary sense and not in its narrow or limited popular sense as contended by the <ORG>. The argument was that handloom cloth of all varieties meant handloom fabric of any kind, whatever be the name by which it may be known in the trade or amongst the people, whether as cloth or otherwise, and whatever be the use to which it may be put, whether for the purpose of preparing garments or for covering or as an adjunct of other wearing apparel and any fabric woven on handloom was therefore covered by the expression "handloom cloth". This argument is, in our opinion, not well-founded. It is defective in that it assumes that the words "of all varieties" enlarge the true meaning and content of the expression "handloom cloth" as used in the entry. Of course handloom cloth within the meaning of the entry may be handloom cloth of any variety but it must still be handloom cloth and the words "of all varieties" do not control or affect the true connotation of what is handloom cloth within the meaning of the entry. The <ORG> used the words "of all varieties" for purpose of bringing within the ambit of the exemption all varieties of handloom cloth provided they satisfied the basic requirement that they were handloom cloth. And the reason for adding these words was obvious. Entry 15 referred to cotton fabrics as defined in item No. 12 of the First Schedule to the Central Excises and Salt Act , 1944. Entry 41 mentioned rayon or artificial silk fabrics as defined in item No. 12-A of the First Schedule to that Act. Entry 43-A specified silk fabrics as defined in item No. 12-B of the First Schedule to that Act while woollen fabrics as defined in item No. 12-C of the First Schedule to that Act were mentioned in Entry 51. All the four kinds of fabrics namely, cotton fabrics, rayon or artificial silk fabrics, silk fabrics and woollen fabrics were, therefore, exempted from tax under the Act, the legislative intent clearly being that since they would be subject to duties of excise, they should not be subjected once again to another form of impost namely sales tax or purchase tax. Now if we look at the definitions of all these different kinds of fabrics in the First Schedule to the Central Excises and Salt Act , 1944, we find that all the definitions exclude fabrics woven on handloom. If, therefore, there were any fabrics woven on handloom, they would not be exempt under any of the entries 15, 41, 43-A and 51. The <ORG>, however, wanted to encourage handloom industry and, therefore, with a view to granting exemption the <ORG> enacted entry 29 but in granting the exemption the <ORG> confined it to handloom cloth of all varieties and did not extend it to handloom fabrics of all varieties. The <ORG> obviously added the words "of all varieties" because handloom cloth may be made of any of the materials of which cotton fabrics, rayon or artificial silk fabrics, silk fabrics or woollen fabrics as defined in the various entries of the First Schedule to the Central Excises and Salt Act , 1944, may be made and the <ORG> wanted to include all these different varieties of handloom cloth except the variety denoted by the expression "pure silk cloth". These words were certainly intended to be words of amplification, but the amplification was within the framework of what would be connoted by the expression "handloom cloth" and they did not have the effect of enlarging the scope and content of the expression "handloom cloth" nor were they indicative of any legislative intent to use the expression "handloom cloth' in its primary or technical sense. As a matter of fact if the <ORG> wanted to include within the ambit of the exemption handloom cloth in its primary or technical sense as meaning any fabric woven on handloom, the <ORG> would have used the words "handloom fabrics" and not "handloom cloth". The <ORG> was aware of the expression "fabrics" and in fact used that expression in entries 15, 41, 43-A and 51 but when it came to entry 29, the <ORG> deliberately did not use that expression but instead chose to use another expression, namely, "cloth". This would clearly indicate that in entry 29 the <ORG> did not intend to use the expression "cloth" in its primary or technical sense as meaning any fabric but used it in its secondary or popular sense.

10. Taking then, secondary or popular meaning of the word "cloth" the question which we must ask ourselves is : would a trader dealing in handloom cloth regard borders as handloom cloth ? Would in ordinary parlance borders be referred to or known as handloom cloth ? The answer is obviously no. When one talks of handloom cloth in common parlance, one means handloom cloth which can be used for preparing garments or as wearing apparel or for covering or for similar other purpose. One would not think of borders when the expression "handloom cloth" is used. Borders are a distinct commercial commodity known a such and no one in the trade or amongst the public would regard borders as handloom cloth. No one would refer to borders as pieces of cloth though of course technically they are pieces of cloth in the same manner and to the same extent as carpets in <NAME> case ([1964] 15 S.T.C. 437) and nawar tapes in <NAME> case ([1956] 7 S.T.C. 479). But just as carpets and nawar tapes are note cloth in the sense in which that expression is commonly understood, so also, borders are not cloth in that sense. The argument urged on behalf of the assessees was that borders are an adjunct to sarees which constitute wearing apparels and therefore like sarees they should also be regarded as cloth even according to its popular sense. But we do not see how this particular factor can have any bearing on the question whether borders are in common parlance included in "cloth". It may be that borders are an adjunct to sarees in the sense that they may be attached to sarees as embellishments but for that reason they cannot be regarded as cloth. There are many things which are attached to sarees as embellishments and yet they are admittedly not cloth. Take for example laces. Though they are affixed to sarees by way of decoration, they cannot under any circumstances be regarded as cloth. The test is not whether borders are used as an adjunct of wearing apparel. This would be an entirely wrong way of looking at the matter. The question which must be asked is : what in common parlance according to the understanding of common man is the meaning of "cloth" ? Would "cloth" include borders or, in other words, would men in the trade, men who have to deal with this commodity, regard borders as cloth or would they regard borders as a distinct commercial commodity not described by the word "cloth" according to its ordinary popular meaning ? To that our answer clearly is that in ordinary parlance borders cannot be regarded as sloth and they are, therefore, not covered by entry 29 of Schedule A.

11. In the result our answer to the first to the first question referred to us is in the negative. In view of this answer to the first question, the second question does not arise for consideration. The assessee will pay the costs of the reference to the <ORG>.

12. Reference answered accordingly.


JUDGMENT <NAME>, J.

1. This appeal is directed against an appellate judgment of <ORG>, dated the 19th May, 1950, which affirmed the judgment of a single Judge of the Original Side of that Court passed on 9th February, 1949, in Suit No. 2481 of 1947.

2. The plaintiff, who is the appellant before us, is the widow of one <NAME>, a wealthy Hindu resident of Calcutta, while the defendant, who is still an infant, is the only son of <NAME> born of his first wife <NAME>, who died during the lifetime of her husband. The controversy between the parties centers round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as shebait of an idol named <NAME> founded by <NAME> and his mother, either solely of jointly with the defendant, her step-son.

3. To appreciate the points that have been canvassed before us in this appeal, it will be necessary to narrate a few antecedent facts about which there is no dispute between the parties. It may be stated here that neither side adduced any evidence before the trial judge during the hearing of the case and the questions raised in the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions of the Hindu Women's Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938).

4. It appears that one <NAME>, who was the adoptive father of <NAME>, died on 28th of August, 1907, leaving behind him, his widow <NAME> and the adopted son <NAME>, who was then a minor. On February 11, 1910, <NAME> obtained letters of administration to the estate of the deceased <NAME> limited during the minority of the adopted son. On June 13, 1920, the widow purchased a house property in the city of Calcutta - being premises No. 14, Syakrapara Lane - out of the monies belonging to the estate of her husband, and on October 10, 1934, she conveyed the said property to <NAME> who had by that time attained majority.

5. On the very same day that this property was conveyed to <NAME>, <NAME> and <NAME> together executed an indenture, by which certain properties described in Schedules A and B of the document and including premises No. 14 Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that <NAME> had, with the consent and concurrence of her son, established and consecrated the said idol and located it in premises No. 14, Syakrapara Lane, and that she had been performing the worship and periodical festivals of the deity according to Hindu rites. The document lays down in detail the various rites, ceremonies and festivals of the idol that are to be performed daily or at specific periods, and the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties. A remuneration of 25 per cent. of the net income of the debutter property has also been provided for the shebait or shebaits for the time being. After declaring the various trusts, the indenture proceeds to provide for appointment of shebaits and for devolution of shebaitship in the following manner :-

"That the said Sm. <NAME> doth hereby constitute and appoint herself the shebait of the said Thakur for the during the term of her natural life and doth hereby declare that after her death her son the said <NAME> shall become the shebait of the said Thakur and after his death his wife <NAME> and after her death the heirs of the said <NAME> shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits. Provided however that in case the said <NAME> shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be competent for the said <NAME> to appoint by will or otherwise a shebait who would act as such after the death of his said wife as aforesaid but in case the said <NAME> shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law."

6. It is not disputed that <NAME> acted as shebait till her death in 1938 and that after her death <NAME> became the shebait. <NAME>, the first wife of <NAME>, who is referred to in the indenture as stated above, died on 14th January, 1942, leaving her infant son <NAME>, who is the defendant in the suit. Soon after her death, <NAME> married the plaintiff <NAME> as his second wife and within five months after this marriage <NAME> died on the 4th of July, 1942. The present suit was filed in <ORG> on 29th August, 1947, by <NAME> and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the defendant, she being a co-heir of her stepson under the provisions of the Hindu Women's Rights to Property Act . There was a further prayer claiming a right of residence in premises No. 14, Syakrapara Lane.

7. The written statement that was filed on behalf of the defendant denied the plaintiff's claim of shebaiti right, either exclusively in herself or jointly with the defendant, and asserted that the defendant was the sole shebait under the terms of the deed of endowment as well as under law. The defendant also contended that the plaintiff was not entitled to any, right of residence in the premises mentioned above.

8. The learned trial Judge by his judgment dated 9th of February, 1949, held that the plaintiff was neither the sole shebait of the deity nor was she entitled to claim shebaiti rights jointly with the defendant and that the Hindu Women's Rights to Property Act was inapplicable to devolution of shebaiti rights at all. It was held further that as the plaintiff was not in law the natural guardian of the defendant, she could not claim to exercise the rights of a shebait on behalf of the defendant as his natural guardian so long as the defendant remained a minor. The learned Judge held, however, that the plaintiff's claim to a right of residence in premises No. 14, Syakrapara Lane, was well-founded and she was held entitled to relief in that respect. The result was that save and except giving the plaintiff a declaration of her right of residence in premises No. 14, Syakrapara Lane, all the other prayers of the plaintiff were dismissed.

9. Against this decision the plaintiff preferred an appeal which came up for hearing before an appeal Bench of <ORG> consisting of Sir <NAME> and <NAME> The learned counsel appearing in support of the appeal did not seriously challenge that part of the decision of the trial Judge which negatived the plaintiff's claim to act as a sole shebait either under the terms of the indenture of endowment or as a guardian of the defendant during the period of his minority. The only question pressed was whether the plaintiff was entitled to be a joint shebait with the defendant. The learned Judges rejected this contention of the appellant primarily on the ground that the identical point was raised and considered by <ORG> in <CITATION> [ F.C.R. 1] and it was held there that succession to shebaitship was not in any way altered or affected by the provisions of the Hindu Women's Rights to Property Act . The appeal was thus dismissed and the plaintiff having obtained a certificate under article 133(1)(c) of the Constitution has now come up in appeal to this Court.

10. The substantial contention raised by Mr. <NAME>, who appeared on behalf of the plaintiff-appellant, is that under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to <NAME> after the death of <NAME> and after her death it is to vest in the heirs of <NAME>. As <NAME> died during the life-time of <NAME>, the grant of the shebaiti right in her favour lapsed and the heirs of <NAME> are, therefore, entitled to come in as the next shebaits after <NAME>'s death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened and under the Hindu Women's Rights to Property Act , which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve under section 3 of the Hindu Women's Rights to Property Act upon both the plaintiff and the defendant jointly. Assuming, however, for argument's sake, that the expression "property", as used in the Hindu Women's Rights to Property Act , does not include shebaiti right, it is argued by the learned counsel that it is a well-established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu Women's Rights to Property Act has amended the general law of inheritance in certain matters, the same alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. <NAME> - though it was not pressed seriously - that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of <NAME> would have priority over other heirs. It is true that the document speaks only of <NAME>, the wife of <NAME> who is to come as shebait after his death; but it is argued that the word "<NAME>" is merely descriptive of the word "wife" and whoever would happen to be the wife of <NAME> at the date of his death, would be entitled to succeed to his shebaiti rights.

11. Mr. <NAME> appearing for the respondent stated at the outset that he would not dispute as a proposition of law that shebaitship is property of some kind, the devolution of which is governed, in the absence of any direction to the contrary given by the founder, by the ordinary rule of succession under the Hindu law. He contended however, that the Hindu Women's Rights to Property Act , which is a piece of special legislation enacted for a special purpose, does not use the expression "property" in a wide and unlimited sense; and it would appeal clear from the provisions of the different sections of the Act that it could not have had in contemplation, and does not purport to affect, the rules of succession relating to the special and somewhat anomalous type of property which shebaitship admittedly is. The learned counsel referred in this connection to the provisions of sections 3 and 5 of the Act as well as to the preamble which sets out its object, and considerable stress was laid upon the pronouncement of <ORG> in <CITATION> [ F.C.R. 1]. The other contention put forward by the learned counsel turns upon the construction of the relevant clause in the indenture referred to above which lay down the mode of devolution of the shebaitship, and his argument was that reading the clauses as a whole, it would be clear that the intention of the executants of the deed was that the "issue" of <NAME> would succeed to him as shebaits in the first instance and that no other heir of <NAME> basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of <NAME> was alive. A further question relating to the construction of the deed, raised by Mr. <NAME>, was that the words "heirs of the said <NAME>" occurring in the deed are to be construed not as words of devolution but of direct gift to the heirs under the deed and consequently the expression "heirs" must mean those who could legally claim as heirs at the time when the grant was made; and any subsequent change in the law could not affect the position.

12. We will first advert to and examine the provisions of the Hindu Women's Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is.

13. The exact legal position of a <ORG> may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of <ORG> in <CITATION> [48 I.A. 302] that the relation of a <ORG> in regard to <NAME> property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the <ORG> or mahant is a mere manager. But though a <ORG> is a manager and not a trustee in the technical sense, it would not he correct to describe the <ORG>ship as a mere office. The <ORG> has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the <NAME> property. As <ORG> observed in the above case, in almost all such endowments the <ORG> has a share in the usufruct of the <NAME> property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the <ORG>, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of <ORG>i both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests <ORG>ship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of <ORG> in <NAME> v. <NAME> [I.L.R. 60 Cal. 452] and this decision of <ORG> was approved of by <ORG> in <CITATION> [63 I.A. 448] and again in <CITATION> [70 I.A. 57]. The effect of the first two decisions, as <ORG> pointed out in the last case, was to emphasize the proprietary element in the <ORG>i right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord <NAME> in <NAME> v. <NAME> [16 I.A. 137], 'when the worship of a Thakoor has been founded, the <ORG>ship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the <ORG>ship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, <ORG>ship like any other species of heritable property follows the line of inheritance from the founder.

14. Turning now to the Hindu Women's Rights to Property Act , it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down :-

"Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate."

15. Section 3(1) then provides :-

"When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law....... dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as 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."

16. Sub-sections (2) and (4) of section 3 are not material for our present purpose. Sub-section (3) lays down :-

"Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate............."

17. Section 4 lays down that the Act is not to operate retrospectively. The only other section in the Act which has been referred to in the course of arguments is section 5 which runs as follows :-

"For the purposes of this 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."

18. It will be seen that section 3(1) abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husband's property only in default of male issue and she is now entitled to the same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached to section 3(1) to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3(1) speaks of "any property". The expression prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of "property" in law. Of course, the property must be heritable property in respect to which alone the question of succession may legitimately arise.

19. Reliance has been placed by Mr. <NAME>, first of all, upon the object or purpose for which the statute was passed. The object, as set out in the preamble, is to give better rights to women in respect to property; in other words, the object of the legislation is to confer larger rights upon women in comparison to what they enjoyed under the ordinary Hindu law. In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not include within its ambit rights and interest of a shebait.

20. Mr. <NAME> next invokes in support of his contention the provisions of sub-section (3) of section 3 , which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the "Hindu woman's estate". It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applies to <NAME>i right, for the nature of the interest enjoyed by a male or a female <NAME> is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the <NAME>i right devolves upon a female heir under the ordinary law of inheritance. If a <NAME> dies leaving behind him a widow and no male issue, the widow would succeed to <NAME>ship under ordinary law but her rights in respect of the <NAME>i would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the <NAME>i right itself and they exist irrespective of the fact as to whether the <NAME>ship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female <NAME>s may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu woman's estate. When Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a <NAME>. After her death the <NAME>i right would not pass to her stridhana heirs but would go to heirs of the last <NAME> [Anuragi Kuer v. <NAME>, A.I.R. 1939 Pat. 1]. Sub-section (3) of section 3 , therefore, is of no assistance to Mr. <NAME>'s client.

21. Mr. <NAME> then contends that section 5 of the Hindu Women's Rights to Property Act affords a clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible. This section, it may be noted, was added by the amending Act XI of 1938 and the object apparently was to explain what is meant by "dying intestate". It says 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. Mr. <NAME> would read the section as qualifying the meaning of the word "property" as used in section 3(1) or rather as engrafting a limitation upon it. What he says is, that the language of the section would be wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shebaitship, no testamentary dispossession is possible. This argument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will disposing of his properties. A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is "non-testamentable", as Mr. <NAME> puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression "property" as used in section 3(1) has a limited or restricted interpretation and is not applicable to shebaitship, which is recognized as property in Hindu law.

22. Reference may now be made to the decision <ORG> in <CITATION> [ F.C.R. 1], upon which the learned appellate Judges of <ORG> practically based their decision. The facts of that case stripped of unnecessary details are that one <NAME> who was a resident of Madras and owned considerable properties, moveable and immoveable, both within the outside British India, died leaving behind him two widows and the widow of a predeceased son. The deceased had left a will but the legacies given by the same exhausted only a small portion of his estate so that with regard to the rest which was of considerable value he died intestate. The deceased was in possession of several trust properties in regard to which there were certain religious and charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs. The son's widow instituted a suit in the court of the Subordinate Judge at Devakottai for administration of the estate and for partition and separate possession of a half share of the same, basing her claim upon the Hindu Women's Rights to Property Act . The suit was resisted by the two widows as well as by the executors appointed under the will of the deceased and it was pleaded, inter alia, that the Hindu Women's Rights to Property Act was ultra vires the legislature and that in any event it was not applicable as the propositus did not die intestate. The trial court held first that the Act was not ultra vires and was operative on all properties with the exception of agricultural lands and this finding was affirmed by <ORG> on appeal and also on further appeal to the <ORG> by the majority of the Judges of that Court. The second finding of the trial Judge was that the deceased died intestate with regard to a considerable amount of property and consequently the plaintiff was entitled to a half share thereof. <ORG> affirmed this finding with this variation that her claim to moveable situated outside British India was not allowed but the <ORG> reversed the decision of <ORG> on this point and restored that of the trial Judge. The other point and that is the point with which we are concerned in the present case, related to the devolution of the trust estates which were held by the testator. Both the courts below concurred in holding that these trusts should go to the heirs of the deceased under the ordinary Hindu law and that the provisions of the Hindu Women's Rights to Property Act were not attracted to the trusts. This decision was upheld by the majority of the Judges in the <ORG> and that point was actually dealt with by <NAME> in his judgment. The view expressed by the learned Judge is that the Hindu Women's Rights Property Act was intended to apply only to properties beneficially owned by the propositus and it was not applicable to rights in the nature of trusteeship. It seems to us that, property construed, this decision does not stand in the way of the appellant. In the first place, we do not know at all what he nature of these trusts was. The learned Judge observed himself in his judgment that there was little or no evidence as to the terms of the foundations in respect of any of the trusts "managed" by the deceased. This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere manager of the trusts and in respect of some of them at least he was the manager jointly with other persons. In <ORG>, Sir <NAME> expressly held that in no sense could the trust properties be regarded as the separate property of the testator and consequently Act XVIII of 1937 could not apply to such a case. <NAME> observed with reference to the documents relied upon by the learned counsel for the appellant that they only provided for "management by his heirs." At any rate, we have no materials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties. The indications, on the other hand, are clearly in the opposite direction. In these circumstances, no question arises in the present case of controverting the proposition of law that <NAME> purported to lay down, namely, that the Hindu Women's Rights to Property Act could not govern succession to property in respect to which the propositus had no beneficial enjoyment. It is not possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act. There are indeed one or two observations of the learned Judge in his judgment, not very definitely expressed, from which it is not impossible to draw an inference in favour of the respondent, but we think that they should be construed in the light of the facts and the actual decision in the case. The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be noted that not only the word "shebaitship" has not been used by the learned Judge but he does not even confine his remarks even to religious trusts. Moreover, trusteeship is not certainly equivalent to shebaitship. On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property. The object of the Act, as stated above, is to give better rights to women in respect of property. If a trusteeship, even if it is regarded as property, carries with it no emoluments or any beneficial interest for the trustee and consists of nothing else But a bundle of obligations and duties, it might possibly be said that the giving of share in such rights to a Hindu widow would not in any wan improve her position. But the position would be obviously different if there is a beneficial interest of a substantial kind inseparably connected with the duties of a particular office. They again, the learned Judge possibly used the expression "private property" in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to section 3(3) of the Hindu Women's Rights to Property Act is, as we have indicated already, not much helpful for the purpose of construing the Act. After all, we must take the decision as it stands and it is not right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to lay down. We think that a very proper view of the effect of this decision of the <ORG> has been taken by a Division Bench of <ORG> in <CITATION> . There the question arose in connection with the rights associated with the office of archakatvam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the <ORG> in <CITATION> [ F.C.R. 1] has no application to a case relating to the office of archakatvan. It is pointed out by <ORG> that though the observations of the learned Judge in the <ORG> are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of the hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait of shebaits for the time being as their remuneration. Our conclusion, therefore, is that there is nothing in any of the provisions of the Hindu Women's Rights Property Act which excludes from the scope of operation of the Act succession to shebaitship is a recognized form of property in Hindu Law.

23. Assuming that the word "property" in Act XXIII of 1937 is to be interpreted to mean property in common and ordinarily accepted sense and is not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. <NAME> is perfectly sound. Succession of shebaitship, even though there is an ingredient of in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. While the general law now been changed by reason of Act XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of shebaitship.

24. The last contention of Mr. <NAME> that under the indenture itself the wife of <NAME> and <NAME> particularly has been given rights of succession to shebaitship prior to any issue of <NAME> manifestly untenable and as the learned counsel was not at all serious in pressing this point, we consider unnecessary to discuss it any further.

25. It remains for us now to advert to and consider the other contentions raised by Mr. <NAME> which depend upon the construction of the relevant clauses in the indenture. It may be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words "heirs of the said <NAME>" occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language and the whole tenor of the document. It is to be noted that <NAME> was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that <NAME> should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of <NAME>, <NAME>, the founder, himself, was to be the shebait and save and except the provision made in favour of <NAME>, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before <ORG> in <CITATION> [ F.C.R. 1] with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by <NAME> that it was not reasonable to construe such words as words of gift and not of devolution.

26. On the question of construction Mr. <NAME>'s main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it will be manifest that the executants of the deed intended that the issue of <NAME> were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in so long as an issue remained alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of <NAME>, her son, the said <NAME> Mullick, shall become the shebait, after him his wife <NAME>, and after her death, the heirs of the said <NAME> Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said <NAME> shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be competent for <NAME> to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said <NAME> Mullick shall happen to die without any issue, the shebaitship of the said <NAME> after the death of his wife shall devolve upon his heirs under Hindu Law. Mr. <NAME> lays stress upon the proviso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of <NAME> can come in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. <NAME> invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of <NAME>.

27. We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense. Mr. <NAME> argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to <NAME> to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exercised by <NAME> even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, <NAME> would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen but the wife is not given any power of adoption and no appointment is also made by <NAME>, the consequence would certainly be that the other heirs of <NAME> would succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of <NAME>. As <NAME> actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. <NAME> also must fail.

28. The result, therefore, is that, in our opinion, the appeal succeeds. The judgment and decree of both the courts below are set aside except the declaration of the right of residence of the plaintiff which was given by the trial court and not disturbed in appeal. In addition to that, it will be declared that the plaintiff is entitled to joint shebaitship with the defendant in respect of the <ORG> created by the indenture of October 10, 1934. We direct the taxed costs of both the parties in all the courts to be paid out of the <ORG> estate.

<NAME>, <NAME>

29. I agree with the conclusion reached by my three learned brothers in the judgment just now pronounced, but I would like to add a few words on two points on which I do not see eye to eye with them fully.

30. In support of his contention that the word "property" in the Hindu Women's Rights to Property Act cannot be construed so comprehensively as to include a shebait right, Mr. <NAME> referred to sub-clause (3) of section 3 , which speaks of "any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate"; and he urged that the conception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention. In dealing with it, we are not thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteristics as constituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a "Hindu woman's estate" as contrasted with a full or absolute estate taken by a male heir ? Does a male heir get higher rights than a Hindu widow ? and if so, what are they ? So far as a shebaitship is concerned, the office does not ensure beyond the lifetime of the holder, whether male or female, and is generally inalienable. It is res extra commercium. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alienability arises out of the nature of the property and not out of the nature of the estate taken by the heir. In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in <CITATION> [ F.C.R. 1] by Sir <NAME>, where, referring to sub-clause (3) of Section 3 , he observes :-

"This provision will be appropriate enough in relation to private property where the woman's estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office, the law makes no difference between the interest taken by a male heir and the interest taken by a female heir."

31. But it does not decisively outweigh the several considerations set forth in the judgment just now delivered by my learned brother <NAME> for construing the word "property" in a wider sense so as to include the shebaiti right also. It there is no legal objection to a woman being a shebait under Hindu law, there is no particular reason why she should be excluded from succeeding to the same under an Act which imposes no restriction or prohibition either in express terms, or by necessary implication.

32. The next point relates to the construction of the deed of indenture executed by <NAME> and <NAME>. I am of the opinion that the technical rules of interpretation of provisos and exceptions with reference to their scope and legal effect, adopted in construing statutes should not ordinarily be imported in interpreting deeds and documents executed by laymen, In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main clause or provision; and we must look not merely at the form of the language but its substance, the governing idea or purpose of the deed, the context and the surrounding circumstances togather the real meaning or intention of the executant. Judged in this light and adopting a broad construction, it appears to me that what <NAME> had in mind when he executed the indenture was, as made clear in the proviso, that his issue (born of his loins) or any person whom his wife may adopt on his authority, should succeed to the shebaiti in the first instance; and secondly, in default of such contingency, the shebaitship should go to any person who may be nominated in this behalf by his will; and thirdly, in default of issue (born or adopted) and in default of nomination by will (which is necessarily implied), the right was to devolve upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preceding clause. In this view, the respondent will succeed to the office in preference to the appellant.

33. But the construction placed on the indenture by my learned brothers is also a possible one and I do not desire to express any dissent from the result they have reached.

34. Appeal allowed.