CASE NO.: Appeal (civil) 101-103 of 1954 PETITIONER: AMEER-UN-NISSA BEGUM & ORS. RESPONDENT: MAHBOOB BEGUM & ORS. DATE OF JUDGMENT: 14/01/1955 BENCH: B.K. MUKHERJEE (CJ) & V. BOSE & N.H. BHAGWATI & B. JAGANNADHADAS & B.P. SINHA JUDGMENT:

JUDGMENT AIR 1955 SC 352 The Judgment was delivered by : <NAME>

<NAME> : These three appeals are directed against a common judgment of a Division Bench of <ORG> dated 21-1-1954, by which the learned Judges affirmed, on appeal, three orders made by <ORG>, Hyderabad in three analogous execution proceedings arising out of the execution of the same decree. Two of these three execution cases were commenced by respondents 1 to 12 in Appeals Nos. 101 and l03 of this Court, while the third case was started by respondent 1 in Appeal No. l02. The appellants in the three appeals were the objectors in all the three execution proceedings and their objections having been overruled by both the courts below, have come up on appeal to this Court on the strength of a certificate granted by <ORG> under Art. 133 (1) of the Constitution.

2. This litigation has had a long history behind it, and to appreciate the points that have been canvassed before us, it will be necessary to narrate briefly the material facts.

3. The dispute between the parties relates to rights of succession to the 'matrooka' or personal estate left by one <NAME>, a wealthy noble man and a high dignitary in the State of Hyderabad. The Nawab, who was a member of the <NAME> family and had been a Minister in <ORG> for many years, died on 22-2-1935, while he was on a pilgrimage to Hedjaz. Besides extensive <NAME> properties appertaining to the <NAME> which fetched an income of nearly Rs. 1, 36, 000 per year, he left 'matrooka' or personal estate of considerable value.

It is not disputed that <NAME>, appellant 1 in the appeals before us, was one of the wedded wives of the <NAME> and that she and the five children, whom she bore to her husband, are entitled to their legitimate shares in the properties left by the deceased. There is also no. dispute that the <NAME> was legally married to another lady named <NAME>, some time in 1920. <NAME> left her husband's house a few months after her marriage but the marriage was never dissolved. The only claim put forward by her against her husband's estate which is material for our present purpose is one to recover a sum of Rs. One lakh as dower debt.

The controversy between the parties really centred round the point as to whether two other ladies, to wit, <NAME> and <NAME> were legally married wives of the late <NAME>, or whether they were mere 'kavases'or permanent concubines kept by him. If there was no. legal marriage between them and the <NAME>, it is not disputed that neither they, nor their children, though admittedly begotten on them by the <NAME>, would be entitled to any share in the 'matrooka' or the personal estate left by the deceased. <NAME> and <NAME> are respectively respondents 1 and 5 in Appeals Nos. 101 and 103 before us. Respondents 2 to 4 in these appeals are the children of <NAME>, while respondents 6 to 12 are the sons and daughters of the <NAME> born of <NAME>.

4. The dispute first arose before <ORG> (<ORG>) whose duty it was to distribute the income of the <NAME> estate amongst the heirs of the late Nawab. It appears that in April 1935, shortly after <NAME>, who had accompanied her husband to Mecca, returned to Hyderabad after the death of the latter, the <NAME> <ORG> addressed letters to <NAME>, <NAME> and <NAME> enquiring about the wives and children left by the Nawab. No. letter, it seems, was addressed to <NAME>. On a consideration of the replies given by the addressees and also the statements made on their behalf at the hearing before the <ORG>, the latter drew up a report which was submitted to <ORG>.

The <ORG> proceeded on the footing that the Nawab's marriage with <NAME> was beyond dispute but as <NAME> did not produce her marriage certificate even after repeated demands by the <ORG>, she as well as <NAME> were treated as concubines. The <ORG> recommended that the annual income of the <NAME> should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab. Sixty per cent of the income was to go to <NAME> and her issue and the remaining 40 per cent, was to be paid to <NAME> and <NAME>, as it well as to their children.

These recommendations were approved by the <NAME> by a 'Firman' dated 9-7-1936. Previous to this, express intimations were given to the surviving relations of <NAME> under orders of the <NAME> that whatever disputes might exist among them regarding 'matrooka' or personal estate of the Nawab should be decided by proper proceedings in a Court of law and pending such decision the estate might be kept under the supervision of <ORG>.

A dispute arose some time afterwards regarding the pension to be given to the wives of the Nawab. The Council recommended that <NAME> should be given a pension of Rs. 300 per month and a sum of Rs. 100 should be allowed to <NAME>. <NAME> Begum made a representation that <NAME> was not a legally married wife of the Nawab and consequently was not entitled to claim or receive any pension. By a 'Firman' dated 30-ll-1937, the <NAME> directed that the entire pension should go to <NAME> and <NAME> should be instructed to prove the legality of her marriage in <ORG>.

On 8-2-1938, <NAME> and her children filed a suit in <ORG> which was a Court established under the law for deciding rights of succession, marriage, divorce etc. of the Muslims in the Hyderabad State, praying for a declaration that <NAME> was the legally married wife of the Nawab and the children were his legitimate children, and for other consequential reliefs in the shape of participation in the 'matrooka' and recovery of dower debt payable to <NAME>. <NAME> and her children and <NAME> and her children were among the defendants impleaded in the suit.

Written statements were filed by the defendants and also rejoinders by the plaintiffs, but before the suit could come up for hearing, a 'Firman' was issued by the <ORG> on 19-2-1939 on the application of Ameerunnissa directing the withdrawal of the suit from <ORG> and the appointment of <ORG> consisting of <NAME>, the then Chief Justice of Hyderabad and the Judge of Darul Quaza, before whom the suit was pending, to investigate the matter and submit a report to the <ORG> through <ORG>

5. The proceedings before <ORG> commenced on 27-3-1939. On 26-9-1939, <NAME> filed a plaint before the <ORG> on behalf of herself and her children wherein she claimed identical reliefs as were claimed by <NAME> and her children. This plaint was at first rejected by the <ORG> but was subsequently entertained under a Firman dated 5-9-1940. It appears that <NAME> also lodged a plaint in <ORG> in respect of her dower against the estate of the Nawab and this matter was also directed to be investigated by the <ORG>.

The inquiry before the <ORG> was a protracted affair in which a large mass of evidence both oral and documentary, was adduced. The <ORG> submitted its report on 16-10-1944. They found that <NAME> and <NAME> were both legally married wives of the Nawab, with the result that they and their children were entitled to participate in the distribution of the 'matrooka'. <NAME> was also held to be a legally wedded wife of the Nawab and as such entitled to the dower claimed by her.

When the report came up for consideration by <ORG>, the members of the <ORG> were divided in their opinion. A minority of the members was in favour of accepting the findings of the <ORG> forthwith but the majority view was that a further report should be obtained, before the <ORG> could formulate its final recommendation. Eventually, on the advice of the <ORG>, the <NAME> directed by his 'Firman' dated 27-8-1945, that the report of the Special <ORG> should be scrutinised by an Advisory Committee consisting of three persons, to wit, two Judges of <ORG> and the Legal Adviser of the <ORG>.

The instructions conveyed to the <ORG> in the 'Firman' were that they should take no. further evidence and should not hear the parties and that what they were to consider was, whether having regard to the documents in writing of the late Nawab and other evidence adduced before the <ORG>, the three ladies could be held to be legally married wives or not. The three ladies referred to were <NAME>, <NAME> and <NAME>.

This <ORG> submitted its report on l4-11-1945, and their findings were that the marriage of <NAME> was proved but that the marriages of <NAME> and <NAME> were not proved. On 20-3-1946, <ORG> recommended that despite the report of the <ORG>, the findings of <ORG> should be accepted and this recommendation was approved by the <ORG> by a 'Firman' dated 26-6-1947, which was communicated to <NAME> and <NAME> Begum on 28-71947. The 'Firman' is in these terms :

"In this connection even after knowing the opinion of the advisers who were appointed to advise the members of the <ORG>, the opinion of the majority of the <ORG> is that the decision of the <ORG> is worthy of being implemented. So it should be implemented soon, because in this much delay has already occurred and the heirs are greatly worried waiting for the decision of the <ORG>."

6. There was a petition by <NAME> praying that the members of <ORG> themselves should be asked to implement their findings but eventually it was decided by a Resolution of the Executive Council dated 22-9-1947, that the task of enforcing the recommendation of the <ORG> should be entrusted to the Chief Justice of <ORG>. This Resolution is worded as follows :

"It has been unanimously resolved that for the execution of the report of the <ORG> there is a machinery existing in <ORG>, through whom such matters can be completed. For this reason this matter may be entrusted to Mr. <NAME>, C. J., so that he may enforce the recommendations in the report of the <ORG> as early as possible."

This was accepted by the <ORG> and on 30-5-1948 a 'Firman' was issued in the following terms :

"In accordance with the opinion of the <ORG> the decision of the <ORG> may be entrusted to the Chief Justice for execution proceedings so that he may carry into effect the recommendations of the <ORG> as soon as possible."

It appears that in subsequent communications to <ORG> the <ORG> expressed doubts regarding the status of <NAME> and <NAME> and suggested the replacement of the '<NAME>' of 26-6-1947 by new orders in the nature of a compromise. <ORG>, however, stuck to their decision and finally on 3-6-1948, the findings of the <ORG> were transmitted to the Chief Justice for execution of the same as early as possible.

On 28-6-1948, another 'Firman' was issued by the <ORG> to the effect that whatever report the Chief Justice may prepare in respect of the distribution of the 'matrooka' he should obtain the sanction of the <ORG> through the <ORG> before carrying it into effect. This direction was embodied in a Resolution of the Executive <ORG> dated 2-9-1948. The Police Act ion in Hyderabad commenced soon after that and on 25-9-1948, after the Police Act ion had terminated and a Military Governor was placed in charge of the Hyderabad State, a formal communication of the Resolution made above was made to the Chief Justice.

Soon afterwards, on the application of <NAME> made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16-10-1948. This stay order was again cancelled on 6-11-1948, and the execution proceedings were allowed to continue. On 2-12-1948, the Chief Secretary to the president of <ORG> wrote a letter to the Chief Justice, enquiring of the latter by what time his report regarding distribution of the 'matrooka' would be ready. In his reply dated 4-12-1948, the Chief Justice intimated that the report was almost ready and would be submitted in a day or two and on the day following the report was sent to <ORG> of the <ORG>.

On 24-2-1949, however, a 'Firman' was issued by the <ORG> purporting to act under the advice of the Military Governor which directed that the finding of <ORG> which differed from the views taken by <ORG> should be given effect to; in other words the claims of <NAME> and <NAME> would stand dismissed and <NAME> was to pay Rs. One lakh to Fatimaunnissa as the dower due to the latter. The 'Firman' concluded as follows :

"The matter is now finally decided and the case will not be reopened."

In spite of the ostensible finality contained in this 'Firman', a further 'Firman' was issued on 7-9-1949, which revoked the earlier 'Firman' of 24-2-1949, and the whole case was referred for opinion and report to Sir <NAME>, the Legal Adviser to the Military Governor, who was directed to hear the parties and take such further evidence as he considered necessary. The text of this 'Firman' is as follows :

"In my 'Firman' of 24-2-1949, which as stated therein was issued on the advice of the Military Governor, I directed that effect be given to the findings of the Legal Adviser Justice <NAME> and Justice <NAME> on the case of the succession to the late <NAME>. The Military Governor for certain further reasons has now rendered further advice in accordance with which I revoke the direction given in the said 'Firman' and direct the case to be referred for opinion and report to Sir <NAME>, the Legal Adviser to the Military Governor, who will hear the parties and have discretion to take further evidence if he thinks fit."

Enquiry then began before the Legal Adviser but neither party adduced any evidence. Sir <NAME> submitted his report on -1-1950. The material findings and recommendations in his report were as follows;

'P. 76 : My finding on the case is that neither <NAME> nor <NAME> was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the 'Matrooka'.

P. 77 : If this finding is accepted, the order required for its implementation would be an order dismissing the claims of <NAME> and <NAME> on the 'Matrooka' and directing <NAME> to pay Rs. One lakh out of the 'Matrooka' to Fatimaunnissa on account of <NAME>.

7. The Constitution of India came into force on 26-1-1950, and after the integration of Hyderabad with <ORG>, the <NAME> lost his absolute sovereign powers which he could exercise previously. It was, therefore, no. longer possible for him to issue a 'Firman' in terms of the report of Sir <NAME>. To obviate this difficulty, recourse was had to legislation and in April 1950, an Act was passed, known as Wali-ud-Dowlah Act (Succession Act), which purported to end the disputes regarding rights of succession to the 'matrooka' or personal estate of <NAME>. Section 2(1) contained the material provisions of the Act and laid down that "

the claims of <NAME>, <NAME> and their children to participate in the distribution of 'matrooka' of the late <NAME> are hereby dismissed.

The second clause of this section provided that a sum of Rs. One lakh was to be paid to <NAME> on account of her dower.

8. Section 3 further provided that the decision affirmed in S. 2 could not be called in question in any Court of law. The Act received the assent of the <NAME> as Raj Pramukh of the <ORG> on 24-4-1950.

9. On 6-3-1950, <NAME> and <NAME>, together with their children, presented a petition before <ORG> under Art. 226 of the Constitution, praying for appropriate writs to quash the aforesaid Act on the ground of its provisions being in conflict with the fundamental rights of the petitioners under Arts. 14, 19 (1)

(f) and 31 of the Constitution. This application was resisted by <NAME> and her children.

<ORG> by its judgment dated 7-11-1950 substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected their rights. Against this decision, <NAME> and her children took an appeal to this Court being C. A. No. 63 of 1952 reported as - ' <CITATION> ', 1953 AIR(SC) 91 (A). This Court dismissed the appeal basing its decision practically on one ground, namely that the provisions of the Act violated the fundamental rights of the respondents guaranteed under Art. 14 of the Constitution; and in this view it was considered unnecessary to decide the other points raised before <ORG>.

It may be mentioned here that the learned Judges of <ORG> held 'inter alia' in their judgment that there was a valid and operative decree in favour of <NAME>, <NAME> and their children based on the decision of <ORG>, and one of the grounds on which the impugned Act was declared to be invalid was that this decree being property in the eye of law, the impugned Act had deprived the petitioners of their proprietary rights within the meaning of Arts. 19(1)(f) and 31 of the Constitution. This Court refrained from expressing any opinion upon this part of the judgment of <ORG> and left the point open, particularly in view of the fact that the question of their being an effective and final decree in favour of the respondents was raised specifically by <NAME> and her children in the execution case started by the respondents which was awaiting decision before <ORG> of Hyderabad.

As has been said above, it was in pursuance of the 'Firman' of the Nizam, dated 30-5-1948, that the decision of <ORG> was transmitted for implementation to the Chief Justice of <ORG>. On 13-7-1948, <NAME>, <NAME> and their children presented an application for execution of this decree before the Chief Justice of <ORG> and this execution case was pending when the Military Governor of Hyderabad by his order dated 16-10-1948, directed a stay of the execution proceedings. This order indeed was withdrawn on 5-11-1948, and the Chief Justice did proceed with his work after that and submitted his report on the 5th of December following, but shortly after that the 'Firman' of 24-2-1949 came, which dismissed the claims of these two ladies and their children altogether.

The events after that, leading up to the passing of the Wali-ud-Dowlah Succession Act which have been referred to already, prevented any further steps being taken in the execution proceedings. After the decision of <ORG> was given on the writ petition and the Wali- ud-Dowlah Succession Act was declared invalid, a fresh petition was filed by <NAME>, <NAME> and their children on 12-3-1951. At that time an appeal had already been taken by <NAME> and her children against the judgment of <ORG> in the writ petition and the appellants had obtained a partial stay of execution proceedings on the basis of a consent order passed by this <ORG> on 25-1-1951. Consequently, in the application for execution filed on 12-3-1931, the prayer of the respondents was that the execution proceedings might be carried on subject to the order for partial stay made by this <ORG>.

This execution petition was transferred to <ORG>, Hyderabad, under the orders of the Chief Justice as the original side of <ORG> where the execution proceedings were pending had been abolished under the provisions of the Abolition of Original Jurisdiction of <ORG> Act. This application was resisted by <NAME> and her children and the contentions raised 'inter alia' on the behalf were that there was no. effective decree in favour of the applicants at any time which was capable of being executed and even if there was any decree, it was destroyed by the 'Firmans' of the <ORG>, dated 24-2-1949 and 7-9-1949.

It was also contended that <ORG> had no. jurisdiction to execute the decree. The learned Judge of the any <ORG> rejected these objections and directed that execution should proceed. This order was passed on 5-2-1952, and <NAME> and her children took an appeal against this decision to <ORG> which was numbered Appeal No. 196/1 of 1951-52.

10. As has been said already, on 9-12-1952, this Court dismissed the appeal filed by <NAME> and her children against the judgment of <ORG> in the writ proceedings. As a result of the dismissal of the appeal, the stay order was vacated and <NAME>, <NAME> and their children presented another application for execution in <ORG> in which the rest of their claims under the decree was included which was stayed during the pendency of the appeal in this Court. This petition was filed on 3-1-1953.

<NAME> and her children raised the identical objections against this application as they had raised in the earlier proceedings. The learned Judge of <ORG> took the matter as being concluded by his previous decision and dismissed these objections by an order dated 20-2-1953. Against this order Appeal No. 190/1 of 1953 was taken by <NAME> and her children to <ORG>.

11. Alongside the first execution petition of <NAME> and others, <NAME>, the other admitted wife of the late Nawab, filed a petition for execution of her decree which she had obtained under the impugned Act and which had been declared to be subsisting by <ORG> so far as her claim was concerned. To this execution petition also <NAME> and her children raised an objection and by a similar order dated 5-2-1932, the learned Judge of <ORG> dismissed the objections and directed execution to proceed.

Against this order also, <NAME> and her children took an appeal to <ORG> which was numbered Appeal No. 195 of 1951-52. These three appeals were heard together by the learned Judges of <ORG> and were disposed of by one and the same judgment dated 21-1-1954. The learned Judges affirmed the view taken by <ORG> and dismissed all the three appeals.

It is against the judgment that Appeals Nos. 101 to 103 of 1954 have been brought to this Court. Of these, Appeals Nos. 101 & 103 arise out of the two execution proceedings commenced by <NAME>, <NAME> and their children, while Appeal No. 102 arises out of the execution proceedings started by <NAME>.

12. It may be mentioned at the outset that Appeal No. 102, which is directed against <NAME>, has not been seriously pressed by the learned Attorney General who appears for the aappellants in all the appeals. The appellants do not dispute that <NAME> was legally married to <NAME> <NAME> and is entitled to a sum of Rs. One lakh as dower out of the personal estate of her husband. As a matter of fact, the appellants have already paid her the sum of Rs. One lakh out of the 'matrooka' of the <NAME> in their possession under the terms of the stay order, passed by this Court, on the application of the appellants at an earlier stage of the appeal.

The learned Attorney General made it clear that his clients have no. objection to <NAME> recovering this amount in discharge of the dower debt admittedly due to her from the estate of the Nawab but they are not prepared to treat this as payment towards the so- called decree which is the subject-matter of these execution proceedings and the existence and validity of which they do not admit.

The learned counsel appearing for <NAME> expressed his readiness to accept the money in full satisfaction of the dower debt duo to his client and this position being accepted by both parties, there is no. other question which requires determination in this appeal. Whether <NAME> is entitled to any share of the '<NAME>, as wife of the deceased is another question and is not the subject-matter of the present proceedings and we do not express any opinion on this point at all. Subject to this observation, Appeal No. 102 will stand dismissed and there shall not be any order as to costs.

13. We will now take up the two main appeals, to wit, Nos. 101 and 103 which involve the same points for consideration and which have been argued with elaborate fullness by the learned counsel on both sides. The Attorney General appearing in support of these appeals has put forward a three-fold contention on behalf of his clients. He has contended in the first place that there was never in fact a decree in the present case capable of execution and consequently the execution petitions filed by the respondents were misconceived and wholly untenable in law.

14. The second point urged is that even if there was an effective decree at any time that was completely destroyed by the two 'Firmans' of the <ORG> dated 24-2-1949, and 7-9-1949. Lastly it is argued that assuming that a valid and operative decree is still in existence, <ORG> has no. jurisdiction to execute the decree.

15. The determination of all these questions depends primarily upon the meaning and effect to be given to the various 'Firmans' of the <ORG> which we have set out already. It cannot be disputed that prior to the integration of Hyderabad State with <ORG> and the coming into force of the Indian Constitution, the <ORG> of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no. constitutional limitations upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the <ORG> and they were binding in the same way as any other law; - nay, they would override all other laws which were in conflict with them. So long as a particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later 'Firman' at any time that the <ORG> willed.

16. Before <ORG> the question was elaborately discussed as to whether the 'Firmans' that were passed in the present case were in the nature of legislative enactments or judicial orders. We do not think that the question is of any practical importance for purposes of the present case though it may have some bearing on the rule of construction that is to be applied in interpreting these 'Firmans'.

The <NAME> was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new <ORG>, he could, according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation; however, between the one and the other would from the very nature of things be not justified or even possible. The learned counsel appearing before us on both sides, it may be stated, did not advance any argument upon this point at all.

17. In order to decide whether there was in fact a decree capable of execution in existence at any time in the present case, and, if it did so exist, whether it was revoked or cancelled later, we will have to examine the sequence of events beginning from the filing of the suit by <NAME> and others in <ORG> in February 1938, and ending with the 'Firman' of the <ORG> passed on 7-9-1949, by which the case was referred for opinion and report to Sir <NAME>.

<NAME> filed her suit in <ORG>, which was an ordinary <ORG> established by law for deciding disputes relating to marriage, divorce, succession, etc. of the Muslims in the Hyderabad State. If this suit had been allowed to continue in that <ORG>, there is no. doubt that it would have, in the usual way, culminated in a decree capable of execution under the ordinary law. The case was, however, withdrawn from <ORG> under orders of the <ORG> dated 19-2-1939, and <ORG> was appointed consisting of the Chief Justice of Hyderabad and the Judge of <ORG> to investigate and submit a report to the <ORG> through the executive council.

18. That <ORG> was a sort of judicial tribunal and not a mere administrative body is not disputed on behalf of the respondents. The <ORG> certainly intended it to be a substitute for <ORG> where the case was pending. As a matter of fact, it appears to have been quite a normal practice in the Hyderabad State for the <ORG> to direct disputes regarding succession to estates of princes and noblemen to be decided by Special Commissions of this sort and not by ordinary Courts. What amount of authority the decision of such tribunals would carry undoubtedly depended upon the directions of the <ORG> embodied in the relevant 'Firman'.

Mr. <NAME> lays stress upon the word "decision" in connection with the appointment of <ORG> by the '<NAME>' of 19-2-1939. The <ORG> was undoubtedly authorised to decide the case referred to it and it was to determine the rights of the different claimants to the personal estate of the Nawab. The decision of the <ORG>, however, was to be submitted to the <ORG> through <ORG>. We agree with Mr. <NAME> that <ORG> was not to act in any independent capacity but was merely to assist the <ORG> in arriving at the decision which he was to take in the matter. But there can be no. doubt that the decision of <ORG> would not be final and conclusive and would not have the binding force of a decree or judgment of a <ORG> so long as it did not receive the approval or sanction of the <ORG>.

It is true that <ORG> had almost all the 'trappings' of a <ORG> but the '<NAME>' of the <ORG> which brought it into existence did not confer upon it the power to make a final pronouncement which would 'proprio vigore' be binding on and create rights and obligations between the parties. The binding authority could attach to it only by the sanction of the <ORG>. We are unable to agree with Mr. <NAME> that the only implication of the direction in the '<NAME>' regarding the submission of its decision by <ORG> to the <ORG> was this, that the <ORG> reserved to himself the power of vetoing the recommendations of the <ORG> if he so liked but so long as no. disapproval was expressed by him, the recommendations would have the force of a judgment of a full-fledged judicial tribunal. This would be going against the plain words used in the '<NAME>'.

The position obviously is that the report of <ORG> could not 'per se' operate as a decree. It could acquire the force of a decree after it received the sanction of the <ORG>. In our opinion the 'Firman' of the <ORG> dated 26-6-1947 amounted to giving such sanction. This 'Firman', the contents of which have been set out above, declared the report of <ORG> to be worthy of implementation and expressly directed that it should be implemented. We, therefore, hold that there was a decree capable of execution brought into existence in this case on 26-6-1947. The question now is, whether or not this decree was destroyed or annulled by the subsequent '<ORG>' of the <ORG> referred to above.

19. <ORG> being an 'ad hoc' or extraordinary tribunal, its decision could be implemented only in the way it was directed to be implemented by the <ORG>. As stated above, a 'Firman' of the <ORG> dated 30-5-1948, which embodied a resolution of <ORG> of an earlier date, directed that the decision of the <ORG> should be entrusted for implementation to the Chief Justice of <ORG> and the latter was requested to carry it into effect as soon as possible. On 3-6-1948, the report of the commission was actually transmitted to the Chief Justice for execution. On 28th June following, however, a 'Firman' was issued by the <ORG> to the following effect :

The Chief Justice should be enjoined to see that whatever report he may prepare in respect of the distribution of 'matrooka', he should obtain my sanction through the <ORG> before carrying it into effect.

The learned Attorney General argues that this 'Firman' had the effect of destroying the finality of the decision, assuming that any finality attached to it by the 'Firman' of 26-6-1947. We do not think that we can accept this contention as correct. The language of the 'Firman' clearly indicates that the finality of the decision of <ORG> so far as it related to the rights of the parties as well as the shares in the 'matrooka' to which the different claimants were entitled, was not in any way altered or affected. The report of <ORG> would still have to be implemented by the Chief Justice but the actual scheme of partition or allotment of the shares which the Chief Justice as the executing court might prepare would not be carried into effect till it received the sanction of the <NAME>.

The power reserved by the <NAME>, therefore, extended only to making or suggesting alterations as he thought fit as regards the final scheme for partition, but it did not in any way disturb the rights of the parties or the shares to which they were entitled according to the findings of <ORG>. Whether the power thus reserved by the <NAME> in the matter of granting or refusing to grant final sanction to the scheme for distribution of the estate could be exercised after the integration of the Hyderabad State with <ORG> and the coming into force of the Constitution is a different matter, but we are unable to say that the decision of <ORG> ceased to be executable by reason of the 'Firman' of 28-6-1948.

20. An application for execution of the decree was filed by <NAME> and others before the Chief Justice of Hyderabad on 13-7-1948, and this execution case was pending when the Police Act ion in Hyderabad began. After the Police Act ion had ended and a Military Governor was placed in charge of Hyderabad there was an order passed on 16-10-1948, directing the stay of further proceedings in execution. This order was countermanded on the 6th November following and after that the Chief Justice did proceed with the work of distribution and prepare a report which was submitted for the sanction of the <ORG> on 5-12-1948.

Quite surprisingly, however, a 'Firman' was issued on 24-2-1949, under the advice of the Military Governor which declared that the report of the Advisory committee, which was contrary to that of <ORG>, should be held binding and given effect to and agreeably to that report the claim of <NAME> and <NAME> would stand dismissed. The proceedings were thus seemingly at an end, but it appears that on a representation being made by <NAME> a further order was passed by the <NAME> on the advice of the Military Governor on 7-9-49, which revoked the earlier order of 24-2-1949, and referred the case for opinion and report to Sir <NAME> who was the Legal Adviser to the Governor.

It is on the correct interpretation to be put upon the 'Firmans' of the 24th February and 7-9-1949, that a proper answer could be given to the question raised in the case, namely, whether the decision of <ORG> which was made operative by the 'Firman' of 26-6-1947, was by reason of these two later 'Firmans' annulled or made incapable of execution. Paragraph 1 of the 'Firman' of 24-2-1949 runs as follows :

As advised by the Military Governor, I direct that the findings of the Legal Advisers, <NAME> and <NAME> in the late <NAME> case be given effect to. The result of these findings is that the claims of <NAME> and <NAME> on the 'matrooka' of the late Nawab <NAME> are hereby dismissed and <NAME> should pay a sum of rupees one lac to <NAME> out of the 'matrooka' of the late Nawab."

The only other material provision is para 4 which says " This matter is now finally decided and the case will not, be re-opened.

21. By the 'Firman' of 7-9-1949, the terms of which we have set out already, this direction was reversed and the case was directed "

to be referred for opinion and report to Sir <NAME>, Legal Adviser to the Military Governor, who will hear the parties and will have discretion to take further evidence if he thinks fit."

The learned Judges of <ORG> held these 'Firmans' to be in the nature of judicial pronouncements by the <NAME> in his capacity as a supreme Judge. As there was no. higher judicial authority above the <NAME>, <ORG> was of opinion that the order of 24-2-1949, could be held only to be an order passed on review by which the decision of <ORG> was set aside, and the opinion of <ORG> accepted as the final adjudication on the rights of the parties. But this order, it is said, was passed 'ex parte' without hearing the parties in whose favour the decision of <ORG> was made. So on a representation being made by <NAME> and others, the later 'Firman' was passed on 7-9-1949.

What this later '<NAME>' did was to set aside the 'ex parte' decision made on 24-2-1949, and the result was that the original decree was revived. The matter was then directed to be heard afresh as on an application for review by Sir <NAME> and as the inquiry made by Sir <NAME> proved infructuous and no. final order could be made on those proceedings, the legal position was that the review proceedings failed and the original decree remained intact without being in any way affected by the same.

22. We do not think that the line of reasoning can be accepted as sound. The 'Firmans' issued by the <NAME> could be likened to Judicial pronouncements only in the sense that they affected the rights and the obligations of persons who were parties to a civil dispute. But as the <NAME> enjoyed untrammelled authority to pass any order he liked, the importing of the fiction of a proceeding by way of review, prior to the passing of the 'Firman' of 24-2-1949, seems to us to be altogether unwarranted.

23. Assuming for argument's sake, however, that the order of 24-2-1949, was one passed on a review of the previous decision of <ORG>, obviously on the analogy of the law relating to review proceedings, the order passed on review, whether it affirmed, modified or reversed the earlier decision, would rank as the final decision in the suit or proceeding. The 'Firman' of 24-2-1949, as is stated above, expressly dismissed the claims of <NAME> and <NAME> to the 'matrooka' or the personal estate of the Nawab and the concluding words set out above emphasised the fact that this was the final decision on the rights of the parties which would not be re-opened. It could not, therefore, be said that the order of 24-2-1949 was a mere interim order which did not finally decide the rights of the parties.

When the 'Firman' of 7-9-1949 was passed, it undoubtedly set aside the order of 24-2-1949, but it is difficult to see on what conceivable principle it could be said to have restored the decision of <ORG> which was annulled by the order of 24-2-1949. Even if we hold that there was a further application for review in respect to the order of 24-2-1949, on the ground of its being passed 'ex parte', the effect of the subsequent order passed on 7-9-1949 upon the rights of the parties would depend upon the language of the order itself. The respondents would have been right in their contention if this order, after setting aside the 'Firman' of 24-2-1949, had restored the decision of <ORG>, but it did not do that and, on the other hand, referred the whole case for further enquiry and investigation by Sir <NAME> who was to take further evidence in the matter if he so chose and come to his own findings upon it.

This direction for further enquiry, it is true, proved abortive but that could not help the respondents in any way and the only conclusion that would follow from the events stated above would be that there was no. final decision in this case- the decision of <ORG> being abrogated by the 'Firman' of 24-2-1949, and this order again being superseded by the later order of 7-9-1949, which threw the entire matter open for further enquiry and determination. We are unable to hold, in these circumstances, that there was any final and conclusive determination of the rights of the parties in existence after the order of 7-9-1949, which was capable of execution as a decree.

24. The result will be the same even it we proceed on the footing that the various 'Firmans' issued by the <ORG> were in the nature of legislative enactments determining private rights somewhat on the analogy of private Acts of <ORG>. We may assume that the 'Firman' of 26-6-1947 was repealed by the 'Firman' of 24-2-1949, and the latter 'Firman' in its turn was repealed by that of 7-9-1949. Under the English Common Law when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act 'ab initio'. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act is itself repealed, the last repeal does not review the Act before repealed unless words are added reviving it : vide Maxwell's Interpretation of Statutes, p. 402 (10th Edition).

It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the English Common Law rule if it appears to us to be reasonable and proper. But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second reporting enactment manifests an intention to the contrary. In the present case the 'Firman' of 7-9-1949, does not repeal the earlier 'Firman' of 24-2-1949, 'simpliciter' but makes a further provision providing for fresh enquiry and report which presupposes the continuance of the repeal of the original 'Firman' of 26-6-1947.

This being the position, we are constrained to hold that there was no. final or effective decree in existence subsequent to the issuing of the 'Firman' of 7-9-1949, and the execution proceedings started by the respondents are, therefore, untenable in law. In the view that we are taking it becomes unnecessary to discuss the third point raised by the Attorney General, namely, whether <ORG> has jurisdiction to execute the decree.

25. Although we feel bound to decide these appeals against the respondents, we cannot shut our eyes to the immense hardships that they have been put to by reason of a series of arbitrary and capricious 'Firmans' issued by the <NAME> from time to time. The result has been that the respondents have for these long years been deprived of the right to have their disputes decided according to law by a competent <ORG> and a good deal of time and money has simply been wasted. As matters stand, all the proceedings subsequent to the withdrawal of the suit instituted by <NAME> and her children in the Darul Quaza <ORG> must be held to have been wiped out and the suit of <NAME> must consequently be held to be undisposed of and still pending.

It is true that <ORG> has since then been abolished, but its jurisdiction is now vested in <ORG> of Hyderabad and the suit of <NAME> and others can now be continued in <ORG> from the stage at which it was left when the <NAME> issued his 'Firman' of 19-2-1939. The learned Attorney General accepts this to be the correct position in law and raises no. objection to the suit being tried 'de novo' in that court as the proper court to entertain and decide the claim. We would therefore direct that <ORG> should take upon its file the plaint originally filed in <ORG> and proceed with the trial of the case from the stage at which it stood when the order for transfer was made. The plaintiffs will be at liberty to apply for such amendment of the plaint as may be necessitated by reason of events which have happened in the meantime.

It may be mentioned here that <NAME> did not file an independent suit on behalf of herself and her children, though she and her children were made parties defendants in <NAME>'s suit. As the suit is one for distribution or partition of the personal estate of the late <NAME>, each one of the parties to it, whether a plaintiff or a defendant, is entitled in law to pray for determination of his or her claim to a share in the properties. Thus <NAME> Bibi will be at liberty to raise the question of the validity of her marriage with the late <NAME> and the legitimacy of her children in the written statement filed or to be filed on behalf of herself or her children and these questions will be decided by the <ORG> and a comprehensive decree for distribution of the 'matrooka' left by the <NAME> will be passed by it granting reliefs to the several parties in accordance with the findings which the court might arrive at.

26. Subject to the directions mentioned above, the appeals will be allowed and the execution proceedings will stand dismissed. There will be no order for costs in favour of any of the parties to the present appeals.


PETITIONER: U.N. R. RAO Vs. RESPONDENT: SMT. INDIRA GANDHI DATE OF JUDGMENT17/03/1971 BENCH: <NAME>, S.M. (CJ) BENCH: <NAME>, <NAME>, G.K. HEGDE, K.S. GROVER, A.N. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1002 1971 SCR 46 1971 SCC (2) 63 CITATOR INFO : R 1971 SC1551 (1) RF 1973 SC1461 (224) F 1974 SC2192 (33,36,47,132,134) C 1982 SC 149 (618,709,745) RF 1987 SC2106 (6) ACT: Constitution of India, 1950, Arts,. 74(1) and 75(3)--<ORG> of People dissolved--If Prime Minister ceases to hold office. HEADNOTE: <ORG> was dissolved by the President of India on 27th December 1970. On the question whether the respondent, who was the Prime Minister before the dissolution, ceased to hold office thereafter, HELD: There is nothing in the Constitution and in particular in Art. 75(3) which renders the respondent functioning as Prime Minister contrary to the Constitution. The Indian Constitution establishes a Parliamentary system of Government with a <ORG>, and not a Presidential form. Article 75(3) brings into existence responsible Government, that is, <ORG> must enjoy the confidence of <ORG>. In the context, it can only mean that Art. 75(3) applies when <ORG> does not stand dissolved or prorogued, for, when it is dissolved, <ORG> cannot naturally enjoy the confidence of the <ORG>. But such dissolution of the <ORG> does not require that the Prime Minister and other ministers must resign, or cease to hold office or must be dismissed by the President, because, Art. 74(1). is mandatory and the President cannot exercise his executive power without the aid and advice of <ORG>, with the Prime Minister at the head. [51 B-C, D- H] This view is also in accordance with the conventions followed not only in the United Kingdom but in the countries following a similar system of responsible government. [52 DI JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1971.

Appeal from the judgment and order dated January 21, and February 5, 1971 of <ORG> in Writ Petition No. 63 of 1971.

The appellant appeared in person.

<NAME>, Attorney.-General, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the respondent.

<NAME>, Attorney General, <NAME>, <NAME> and <NAME>, for <ORG>.

ORDER The appeal is dismissed. No order as to costs. We will give our reasons later.

The Judgment of the Court was delivered by <NAME>, C. J,-This appeal by certificate is directed against the judgment of <ORG>, Judgment Madras dismissing Writ Petition No. 63 of 1971 filed by <NAME>, appellant before us. In this petition the appellant had prayed that a writ of qua warranto be issued to the respondent, Smt. <NAME>, and it be declared that the respondent has no constitutional authority to the office of and to function as Prime Minister of India. In brief, the appellant contends that under the Constitution :as soon as <ORG> is dissolved under art. 85(2) of the Constitution <ORG>, i.e., the Prime Minister and other Ministers, cease to hold office. According to him this follows plainly from the wording of art. 75(3 ), which provides that "<ORG> shall be collectively responsible to <ORG>". How can <ORG> be responsible to <ORG> when it has been dissolved under art. 85(2) ? According to him no void in the carrying out of Government will be created because the President can. exercise the Executive Power of the Union either directly or through officers subordinate in accordance with the Constitution as provided in art. 53(1) of the Constitution.

In constitutional matters it is advisable to decide only those points which necessarily arise for determination on the facts of the case. It seems to us that a very marrow point arises on the facts of the present case. <ORG> was dissolved by the President on 27-12-1970. The respondent was the Prime Minister before the dissolution. Is: there anything in the Constitution, and in particular in art. 75(3 ), which renders her carrying on as Prime Minister contrary to the Constitution ? It was said that we must interpret Art. 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not :an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with, a <ORG>. In trying to understand one may well keep in mind the conventions preva- lent at the time the Constitution was framed. Speaking for the <ORG> (<NAME>, C. J.) observed in <CITATION> (1).

"The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form (1) [1955] 2 S. C. R. 225, 236-37.

of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modeled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the for- mulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the <ORG>. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the <ORG>.

In India, as in, England, the executive has to act subject to the control of the legislature; but in what way is this control exercisable by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be <ORG> with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the <ORG>. The same provisions obtain in regard to the Government of <ORG>s-, the Governor or the <NAME>, as the case may be, occupies the position of the head of the executive in the <ORG> but it is virtually <ORG> in each <ORG> that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and <ORG> consisting, as it does, of the members of the legislature is, like the British <ORG>, "a hyphen which joins, a buckle which fastens the legislative part of the <ORG> to the executive part". The <ORG> enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive func- tions; and as the Ministers constituting the <ORG> are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."

<CITATION> (1) it was urged on behalf of the appellants in case that, "the <ORG> has conferred power under Section 68(C) of the (Motor

1) A. I. R 1970 S.C.R 1102, 1106.

Vehicles Act , 1939) to a designated authority. The power can be exercised only by that authority and by no one else. The authority concerned in the present case is <ORG>. The Government could not have delegated its statutory functions to any one else. The Government means the Governor aided and advised by his Ministers. Therefore the required opinion' should have been formed by the Minister to whom the business had been allocated by 'the Rules'. It was further urged that if the functions of the Government can be discharged by any one else then the doctrine of ministerial responsibility which is the very essence of the cabinet form of Government disappears; such a situation is impermeable under our Constitution." Speaking on behalf of the <ORG>, <NAME>, repelled the con- tentions in the following words :

"We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by <ORG>. But in the very nature of things, it is impossible for <ORG> to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorized the Governor under subarticle 3 of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his <ORG> for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of <ORG>.

The <ORG> is responsible to the legislature for every action taken in any of the Ministries. That is the essence of joint responsibility."

Let us now look at the relevant articles of the Constitution in the context of which we must interpret art. 75(3) of the Constitution.

Chapter I of Part V of the Constitution deal-, with the Executive. Article 52 provides that there shall be a President of India and Art. 53(1) vests the executive power of the <ORG> in the President and provides that it shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. The last five words are important inasmuch as they control the President's action under Article 53(1). Any exercise of the executive power not in accordance with the Constitution will be liable to be set aside. There is no doubt that the President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of the Constitution'. Article 60 prescribes the oath or affirmation which the President has to take. It reads :

"I, A. B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India". Articles 74 and 75 deals with <ORG>. They read thus :

"74. (1) There shall be <ORG> with the Prime Minister at the head to aid and advise the President in the exercise of his functions.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed, by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President.

(3) <ORG> shall be collectively responsible to <ORG>.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third schedule.

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.

(7) The salaries and allowances of Ministers shall 'be such as <ORG> may from time to time by law determine and, until <ORG> to determines, shall be as specified in the Second Schedule".

It will be noticed that article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word "shall" should be read as "may". Article 52 is mandatory. In other words 'there shall be a President of India'. So is article 74(1). <ORG> did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have. a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no '<ORG>' nobod y would be responsible to <ORG>. With the aid of advisers he would be able to rule the country at least till he is impeached under Article, 61. It seems to us that we must read the word "shall" as meaning "shall' and not "may". If Article 74(1) is read in this manner the rest of the provisions dealing with the Executive must be read in harmony with. Indeed they fall into place. Under Article 75(1) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under art. 75(2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office.

Now comes the crucial clause three of Article 75. The appellant urges that <ORG> having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of <ORG> the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the <ORG>. As we have shown above, Article 74(1) is mandatory and, therefore. the President cannot exercise 'the executive power without the aid and advice of <ORG>. We must then harmonize the provisions of Article 75(3) with Article 74(1) and Article 75(2).  Article 75(3) brings into existence what is usually called "Responsible Government". In other words <ORG> must enjoy the confidence of <ORG>. While <ORG> is not dissolved under Article 85(2)(b ), Article 75(3) has full operation. But :when it is dissolved <ORG> cannot naturally enjoy the confidence of <ORG>. Nobody has said ;that <ORG> does not enjoy the confidence of <ORG> when it is prorogued. In the context, therefore, this clause must be read as meaning that Article 75(3) only applies when <ORG> does not stand dissolved or prorogued. We are not concerned with the case where dissolution of <ORG> takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for <ORG> has provided for that contingency in S. 14 of the Representation of Peoples Act, 1951.

On our interpretation other articles of the Constitution also have full play, e.g. Article 77(3) which contemplates allocation of. business among Ministers, and Article 78 which prescribes certain duties of Prime Minister. We are grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in <ORG>. We need not burden this judgment with them. But on, the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one, and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.

In the result the appeal fails and is dismissed, but there will be no order as to costs in this Court.

<ORG> dismissed.


JUDGMENT <NAME>, C.J.

1. The appellant financed an appeal filed by one <NAME> in a suit which <NAME> had instituted to recover a half share in certain immovable properties situated in Tinnevelly which he claimed formed part of the joint family estate. It was held that the properties in suit were the separate properties of <NAME>, the deceased brother of <NAME>. The suit was dismissed by the trial Judge, the Subordinate Judge of Tinnevelly, and an appeal was filed to <ORG>. During its pendency <NAME> died and the appellant in this Letters Patent Appeal applied to be brought on the record in his place under the provisions of Order 22, Rule 10 of the Code of Civil Procedure. He claimed that he had acquired a half of <NAME>'s interest in the suit.properties by virtue of a deed dated the 12th of February, 1934. The District Judge allowed the application, but on an appeal to this Court his decision was overruled by <NAME> J., from whose judgment this Letters Patent Appeal has been filed. The learned Judge,held that the document on which the appellant relied did not operate to give him a present interest in <NAME>'s share in the suit properties. He considered that the case fell within the decision of <ORG> in <CITATION> (1913) 25 M.L.J. 301 : L.R. 40 I.A. 86 : I.L.R. 35 All. 273 (P.C.). The decision of the appeal turns on the effect to be given to Clause 5 of the deed. The clause reads as follows:

You should render help to me pecuniarily and prefer an appeal, etc., in <ORG> against O.S. No 22 of 1936 of Tinnevelly Sub-Court on my behalf, and conduct necessary proceedings in <ORG> thereon if necessary. In connection therewith you might engage vakils you like, give vakalat and pay them fees, etc., appoint agents and conduct all proceedings. In respect of other properties in this District which are not included in the above suit and wherein I should get a share, that is, in respect of shops and lands purchased by <NAME> in the name of his wife <NAME> out of a portion of the money brought from Colombo and belonging to us, you should get my share by conducting proceedings or by a suit according to your discretion. Similarly, you should, on my behalf conduct all necessary proceedings for getting my share in the pangus, in the soda mill, cash shop, license shop, outstandings, cash amounts pertaining to the immovable properties and shops at Colombo, and get a share peacefully or by conducting proceedings as you like. You should spend money as you like in respect of all that, and keep accounts yourself. I should, without raising any objection, accept the accounts which may be given by you in respect thereof. The said amounts would bear interest at one per cent, per mensem. You should adjust and take the said principal amounts with interest at one per cent, per mensem out of the properties which I may get for my share. The remaining properties should be divided in equal halves and one half should be taken by you as compensation for your trouble. The remaining one half should be delivered to my possession. You are entitled to join as party and conduct proceedings in the above suits.

2. On the same day on which this agreement was executed <NAME> executed a power of attorney in favour of the appellant in order to enable the appellant to conduct the appeal on hrs behalf and collect the properties awarded to him in the event of the appeal being successful.

3. I am unable to read into Clause 5, a transfer of a half share in <NAME> interest. There are no words there implying transfer, and when the document is read as a whole, what it amounts to is that in the event of the appeal being successful and the appellant being able to collect the properties belonging to <NAME>, he was to divide them and give one moiety to <NAME> and retain the other moiety for himself. The words "on my behalf", which are used twice in the clause, indicate that the appellant was merely acting on behalf of <NAME> and not in his own behalf. The words "one half should be taken by you as compensation for your trouble", are definitely opposed to any idea of a present interest. Therefore I am of the opinion that the reading of <NAME>, of this clause is correct. The statement "you are entitled to join as party and conduct proceedings in the above suits" amounts to nothing if the document does not confer upon the appellant an absolute transfer of a half share, and I hold that it does not.

4. <CITATION> (1913) 25 M.L.J. 301 : L.R. 40 I.A. 86 : I.L.R. 35 All. 273 (P.C.), the agreement said that the financier "will be a co-sharer of one half share" and "that in case of success he will be entitled to proprietary possession of the share entered in paragraph 1 of this document." <ORG> said that these provisions did not confer upon the financier a then present right to possession of a share in the property which was the subject-matter of the suit. By the agreement it was contracted that till the suit was successful the financier should be merely a partner or co-owner in a certain undivided fraction of the property. There was no personal grant or assignment to him of any separate share or fraction of the property divided or undivided. At best the contract only amounted to this that in a certain future event he should become entitled to the proprietary possession of a certain undivided fraction of it, and then have the right to have that fraction partitioned. That seems to me to be the position here and I agree with <NAME> J., that <CITATION> (1913) 25 M.L.J. 301 : L.R. 40 I.A. 86 : I.L.R. 35 All. 273 (P.C.) has direct application.

5. I would dismiss the appeal with costs.

<NAME> J.

6. The language of the agreement is by no means as clear as one might wish. I. was at first impressed with the argument of the learned advocate for the appellant that a definite right to have the property divided was conferred by this document and there remained nothing further to be done by <NAME> for the appellant getting that right. But at the same time I find that there are no words of transfer capable of conferring an immediate right on the appellant. Though the sentence "you are entitled to join as party and conduct proceedings in the above suits" might be regarded as indicating the creation of a present right in the, appellant, effect cannot be given to it when the entire document is read as we must read it in the circumstances in which the parties were placed. I therefore agree that the appeal must be dismissed.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF KERALA AND OTHERS. DATE OF JUDGMENT: 11/12/1958 BENCH: <NAME>, M. BENCH: <NAME>, M. <NAME>, <NAME> (CJ) <NAME>, <NAME>, P.B. <NAME>, K.N. CITATION: 1959 AIR 490 1959 SCR Supl. (1) 787 CITATOR INFO : E&R 1974 SC 651 (9) RF 1977 SC1496 (20) E&R 1978 SC 930 (16) E 1979 SC1628 (23) RF 1986 SC1527 (22) ACT: Fundamental Rights, Infringement of-Contract for supply of goods to Government-Whether a contract of employment- Cancellation of contract and grant to another-Whether discriminatory-Constitution of India, Arts. 14, 16(1), 19(1)(g), 31. HEADNOTE: For the supply of milk to <ORG> at Cannanore for the year 1948-49, the petitioner and the third respondent, <ORG>, Cannanore, had submitted tenders, and the Superintendent who scrutinised them accepted that of the petitioner and communicated to the Director of Public Health the reasons for the decision. Subsequently, the contract to the petitioner was cancelled after giving the requisite notice in terms of Cl. 20 Of the tender, and he was informed that it was the policy of the Government that in the matter of supply to Government medical institutions in Cannanore District, <ORG> was to be given contracts on the basis of prices fixed by <ORG>. The petitioner contended, in a petition filed under Art. 32 Of the Constitution, that there had been discrimination against him vis-a-vis the third respondent, that he was denied equal opportunity of employment under the <ORG>, and that the fundamental rights under Arts. 14, 16(1), 19(1) (g) and 31 had been infringed. Held, that none of the fundamental rights were involved in the present case. A contract which is held from Government stands on no different footing from a contract held from a private party and when one person is chosen rather than another the aggrieved party cannot claim the protection of Art. 14. A contract for the supply of goods is not a contract of employment and the petitioner who was supplying milk to the <ORG> hospital was in no sense a servant and no question of employment qua servant arose. Article 16 (1) was therefore not attracted to the case. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 103 of 1958. Petition under Art. 32 of the Constitution for enforcement of fundamental rights.

<NAME> and <NAME>, for the petitioner. <NAME>, for respondent No. 1.

<NAME>, for respondent No. 3.

1958. December 11. The Judgment of the Court was delivered by HIDAYATULLAH, J.-This is a petition under Art. 32 of the Constitution by one <NAME>, who claims to have held a contract for the supply of milk and other articles of diet for the year 1958-1959 but whose contract for supply of milk is said to have been cancelled by the District Medical Officer (second respondent herein). The contract for the. supply of milk has now been given to the third respondent, <ORG>, Cannanore. From the petition, it appears that the petitioner held contracts for the supply of milk to <ORG> at Cannanore (Kerala State) ever since 1946, and that previous to this, his brother in the same business held similar contracts from 1936.

In 1957, a " uniform procedure for fixing up contracts " was adopted, and by a notification, conditions for acceptance of tender were laid down. The petitioner as well as the third respondent submitted their respective tenders, which were to be opened by the Superintendent of the <ORG> in the presence of interested parties. We need not refer to all the conditions under which tenders were to be accepted, except those which have a bearing upon this matter. It was stated in the conditions that no tender marked at " current market rates " would be accepted, and further that in the supply of milk, preference would be given to approved <ORG>, if their tender was within a margin of 5 per cent. over the market rate or the lowest tendered rate, whichever was less. All persons making tender for the contract had to produce a certificate of solvency and tax clearance certificates, and to make a deposit with the tender.

On January 20, 1958, the tenders which were submitted were scrutinised and the tender of the petitioner for the supply of milk was accepted and that of the third respondent rejected. It appears that the Superintendent (respondent No. 2) communicated to the Director of Public Health, her reasons for accepting the tender of the petitioner and not accepting that of the third respondent. Certain correspondence then ensued between the Director of Health Services and the second respondent, as a result of which the petitioner was informed that the contract for the supply of milk given to him was cancelled. He was informed that it was the policy of <ORG> that in the matter of supply to <ORG> medical institutions in Cannanore District <ORG> was to be given contracts on the basis of prices fixed by <ORG>. It appears that some more correspondence between the Director of Health Services and the second respondent ensued, and it was pointed out to the second respondent that action should have been taken under Cl. 20 of the conditions of the tender and the contract only cancelled after giving a month's notice to the petitioner. In furtherance of these instructions, the second respondent issued a notice in terms of Cl. 20 of the tender, and cancelled the contract after the notice period. The present petition has been filed to question the several orders referred to above. It may be pointed out that previous to this, the petitioner had applied under Art. 226 of the Constitution to <ORG>, but his petition (O. P. No. 201 of 1958) was rejected by <NAME>, J., on June 6, 1958. A Letters Patent Appeal was also dismissed by <NAME>, C. J., and <NAME>, J. (A. S. No. 354 of 1958 decided on July 7, 1958). <ORG> held that the present matter was no more than a breach, if any, of the contract by the State <ORG>, and that the appropriate remedy was to file a civil suit and not to proceed under Art. 226.

It appears that -no special leave to appeal was sought from this Court against the above orders, and the matter has been brought for adjudication, not by way of appeal but directly under Art. 32 of the Constitution as an infringement of the fundamental right of the petitioner. The contention of the petitioner in this behalf is that he is entitled to an equal treatment in the eye of law, and that there has been discrimination against him vis-a-vis, the third respondent. He claims protection under Arts. 14, 16(1), 19(1)(g) and 31 of the Constitution. In our opinion, none of these Articles can be made applicable to the facts of the present case.

No doubt, the petitioner claims to have succeeded in obtaining the contract from the <ORG>, and the third respondent failed to do so. But even if he held the contract, the petitioner did not acquire an absolute right to be continued in that contract, because power was reserved by the <ORG> under Cl. 20 to terminate the contract after giving a month's notice. Whether the exercise of that power in the present case was regular or legal, is not a matter on which we are called upon to pronounce, because adjudication of such dispute can appropriately take place only before the ordinary Civil Courts, where evidence can be gone into and examined at length.

The gist of the present matter is the breach, if any, of the contract said to have been given to the petitioner which has been cancelled either for good or for bad reasons. There is no discrimination, because it is perfectly open to the <ORG>, even as it is to a private party, to choose a person to their liking, to fulfill contracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Art. 14 , because the choice of the person to fulfill a particular contract must be left to the <ORG>. Similarly, a contract which is held from <ORG> stands on no different footing from a contract held from a private party. The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance, but he cannot complain that there has been a deprivation of the right to practise any profession or to carry on any occupation, trade or business, such as is contemplated by Art. 19(1)(g). Nor has it been shown how Art. 31 of the Constitution may be invoked to prevent cancellation of a contract in exercise of powers conferred by one of the terms of the contract itself. The main contention of the petitioner before us was thus under Art. 16(1) of the Constitution, and he claimed equal opportunity of employment under the <ORG>. To begin with, a contract for the supply of goods is not a contract of employment in the sense in which that word has been used in the Article.The petitioner wag not to be employed as a servant to fetch milk on behalf of the institution, but was a contractor for supplying the articles on payment of price. He claimed to have been given a contract for supply of milk, and did not claim to be an employee of the <ORG>. Article 16(1) of the Constitution-, both in its terms and in the collocation of the words, indicates that it is confined to " employment " by the <ORG>, and has reference to employment in service rather than as contractors. Of course, there may be cases in which the contract may include within itself an element of service. In the present case, however, such a consideration does not arise, and it is therefore not necessary for us to examine whether those cases are covered by the said Article. But it is clear that every person whose offer to perform a contract of supply is refused or whose contract for such supply is breached cannot be said to have been denied equal opportunity of employment, and it is to this matter that this case is confined.

Looking to the facts of the case, it is manifest that the petitioner was supplying, or in other words, selling milk and other articles of diet to the <ORG> for the use of hospitals and similar institutions. He was in no sense a servant, and no question of employment qua servant arose. In these circumstances, it is plain that Art. 16(1) of the Constitution is not attracted to the facts. In our opinion, the petition under Art. 32 of the Constitution is wholly misconceived. No fundamental right is involved. At best, it is a right to take the matter to <ORG>, if so advised, and to claim damages for breach of contract, if any.

The petition accordingly fails, and is dismissed with costs.

Petition dismissed.