JUDGMENT <NAME>, J.

1. The appeal has been filed by minor <NAME>, plaintiff in O. S. No. 31 of 19-34 on the file of the Subordinate Judge of Tirunel-veli against the decree and judgment in so far as they went against him. He had filed the suit for partition and separate possession, as the adopted son of <NAME> who died on 11-1-1950. He had claimed a half share in the plaint properties comprised in Schedules 1-A to 1-11 on the ground that in those divided properties got by <NAME>, the father of <NAME>, <NAME> and <NAME>, at a partition with his three sons on 18-6-1930 succession opened only on the death of his widow, the life-estate holder on 12-5-1954, when there were only two heirs.

<NAME> died on 22-11-1980, after executing a will dated 14-9-1930, bequeathing his divided and undivided shares of the properties, got at the partition, to his wife, <NAME>, to be enjoyed by her for her life-time but without making any further provision. <NAME> died on 12-5-1954. The plaintiff contended that <NAME>'s one-fourth share (at partition) would be inherited only by his adoptive father <NAME>, in whose place he stood, and Kumara-swami <NAME>, the first defendant, alone were alive on that date.

Alternatively, he also contended that the one fourth share of <NAME> in the ancestral family properties, got by him at the 1930 partition, continued to be joint family properties with joint tenancy, and survivorship, and as <NAME> died only in 1954 and till that date there was no partition of that one-fourth between the 3 sons and ho and <NAME>, were the only two persons then alive and were therefore entitled to that joint estate by survivorship. Regarding the undivided properties comprised in Schedule II he claimed a one-fourth share (1/2x1/4), just as he had claimed a half share in the divided properties comprised in Schedules . 1-A to 1-H.

2. The first defendant, <NAME>, was a son of <NAME>, and defendants 2 to 4 were the first defendant's sons. Defendant 5 was the widow of Shaumugakumara-swami Mudaliar, another son of Tirumalaiappa. Defendant 6 was a wife of <NAME>, the adoptive father of the plaintiff. Defendant 7 was another wife of <NAME> whose status as wife was disputed by some of the defendants though asserted by the plaintiff. Defendant 8 was the daughter of defendant 7.

3. The plaintiff by invoking the theory of joint tenancy of survivorship wanted to ignore the severance of the coparcenary effected by the partition of 1930, and also to deny the rights of the widows of <NAME> to any share under the Hindu Women's Rights to Property Act , 1937. The lower court, after exhaustively discussing the evidence and the law, held that, as regards the divided properties in Schedules 1-A to 1-H, the plaintiff would be entitled only to a one-sixth share, and only to one-twenty-fourth, share in the undivided second schedule properties (1/4x1/6).

It recognised the right of the widow, defendant 6. It directed partition on these lines, and directed all the parties to her their own costs since the parties could not amicably partition the properties, and the status of defendant 7 was in dispute, and it had been agreed by the parties to be left open for decision in O. S. No. 19 of 1950 on its file, which suit is still pending. The plaintiff has felt aggrieved at his not getting a half share in the properties in Schedules 1-A to 1-H, and a one-eighth share in the properties in Schedule II, and has filed the appeal.

4. The first respondent, <NAME>, filed a memorandum of cross-objections regarding the refusal of his suit costs amounting to Rs. 300, <NAME> died pending the appeal, and his legal representatives have been brought on record. Another memo-randum of cross-objections has been filed by the 5th respondent, <NAME>, the widow of <NAME>, regarding the refusal by the lower Court to decree her costs amounting to Rs. 2100.

5. We have perused the records, and heard the learned Counsel on all sides. Mr. <NAME>, learned Counsel for the appellant, and Mr. <NAME>, learned Counsel for the contesting respondents in the appeal and for the cross-objector in one memorandum of cross-objections, and Mr. <NAME>, learned Counsel for the cross-objector in another memorandum of cross-objections, have- argued the case fully and fairly. Mr. <NAME> did not press before us the wholly unsustainable argument that the succession opened only "on 12-5-1954.

He, however, contended that the lower Court had gone grievously wrong in holding that <NAME> one-fourth share in the ancestral properties, got by him at partition in 1930, would not be covered by the theories of joint tenancy and survivorship, and that his divided sons would take not as joiat tenants but as tenants-in-common, and further in holding that the widows of Ranganatha would get a share, under the Hindu Women's Rights to Property Act , 1937, and thereby reducing the plaintiff's share from one-half in the divided properties in Schedules 1-A to 1-H to one-sixth, and from one-eighth share in the second schedule undivided properties to one-twenty-fourth.

Mr. <NAME> strongly contested this. The question hero is whether the divided sons of a father, who has no undivided son living with him after the partition, take his share of the ancestral properties got at the partition, as joint tenants under the theory of right by birth and survivorship, or as heirs and tenants in common. There are three direct decisions, though not of this court, on this very point and all are directly against Mr. <NAME>'s contention.

6. The first is that of a Bench of <ORG> in <NAME> v. <NAME>, 27 Bom LR 426 : (AIR 1925 Bom 350), where <NAME>, <NAME> and <NAME>, J. have categorically held that the divided sons of a Hindu father succeed to the property as the father received at partition only as tenants in common, and not as joint tenants, as the coparcenary relationship has ceased and with it the joint tenancy and survivorship incidental to it.

The second decision is that of a Bench of <ORG> in <NAME> v. <NAME>, AIR 1932 PUNJ 165, where it has been held categorically that where a father dies leaving separated sons, the property which had come to him on partition with his sons does not become coparcenary property in the hands of the sons, and that after his death the sons take the property as tenants in common and not as joint tenants. The learned Judges have discussed the various decisions relating to the point and have differed from the opinion given by <NAME> in his Hindu law to the contrary.

The third is a decision of a single Judge of <ORG> in <CITATION> , , where too it was held that the separate property got by a Hindu father at partition of the joint family properties with his sons did not become coparcenary property in the hands of Ms divided sons, who had separated from him during his life-time, and that, therefore, after his death, each son takes the property as a tenant-in-common, with the other divided sons and not as a joint tenant.

7. As against the three definite rulings against him on this very point involved in this appeal. Mr. <NAME> could not show a single ruling of <ORG> in favour of his contention. He contented himself with arguing on general principles of Hindu law enunciated in certain decisions relied on by him which, according to him, would lead to an inference that the property got by a father at partition with his sons would still be joint family property with the incidents of right by birth and joint tenancy and survivorship on his death as between his divided sons. We cannot agree with this by reposition, which, in our opinion, is not supported y anything in the rulings relied on by him.

8. He first relied on the ruling <NAME> v. <NAME> 2 Mad. 182 (F.B.). and on the observation therein (and in the cases in <NAME>. <CITATION> , 20 Suth WR 189, Lakshminarasamma v. <NAME> ) that the son's right of inheritance under the Hindu law is distinguished from that of all other heirs in that it is apratiban-dha, i.e., not liable to obstruction, as opposed to sapratibandha (liable to obstruction) applied to the inheritance; by collaterals.

According to Mr. <NAME>, in coparcenary property or joint family properly there are four main rights, arising from the right to birth, namely, the right to claim partition; the right to interdict alienation except for necessity or benefit; the right to apratibandha succession; and the right of representation (that is, sons of a deceased son representing their deceased father, and taking along with the surviving sons, though some of these rights, like the right to claim partition, and the right to interdict alienation, may be given up for the time being at partition, by the partitioning members.

But the argument was the property got by the father and the sons, by division of the ancestral properties at the partition, does not lose the character of joint family property, as would be evident by the fact that if the father or sons got sons thereafter those sons would acquire a right by birth to the property got by their father, and that, therefore, the partition would only mean a temporary arrangement suspending the coparcenary which would revive on the death of the father, regarding his share in the ancestral properties got at the partition.

He said that the same result may not occur regarding the sons inter se regarding the properties got by them, as succession, under the Hindu law, is from father to son, and not the reverse way which is only rarely found. He urged therefore that the partition of 1930 must be practically ignored and the rights of joint tenancy and survivorship as between the divided sons recognised, at the father's death, in the portion of the ancestral properties got by him at the partition.

He even went further, and said that this would apply not only to the father's share of the ancestral properties got by him at partition, but also to his own self-acquired properties, where according to him there is a dormant coparcenary right in the sons, to be asserted at the father's death, subject to his right of alienation inter vivos or by will.

9. According to him, even succession by sons to self-acquired properties of the father would not be by way of inheritance but by right by brith and joint tenancy and survivorship and increased rights. But, hero, he was confronted by the Full Bench ruling of this court in <NAME> v. <NAME>, ILR 44 Mad 499 : (AIR 1921 Mad 168), where it was held that even an undivided Hindu son has no joint tenancy in the self-acquired properties of his deceased father and acquires it at his death, by inheritance, and not by survivorship.

<NAME> wanted to challenge the correctness of this Full Bench decision on the basis of stray not-to-the-point observations in subsequent decisions and wanted us to refer the matter to <ORG>. We see no reason to do so. This Full Bench decision was delivered in 1921 and has never been dissented from by any decision of this court or of any other <ORG> till now, much less overruled by <ORG> or <ORG>.

It has stood the test of 37 years, and we are satisfied that it does not deserve to he referred to <ORG>, especially as we have absolutely no doubt regarding its correctness. Indeed a Bench of this court has held in <NAME> v. <NAME>, ILR 55 Mad. 577: (AIR 1932 Mad. 361) that on the death of a Hindu leaving self-acquired property, his undivided sons succeed to such property to the exclusion of divided sons. Mr. <NAME> conceded that regarding ancestral properties left by a father who has divided from some of his sons and is living undivided from some others of his sons, the imdivided sons succeeded to these properties to the exclusion of the divided sons. But he explained it away on the theory of survivorship enuring to the undivided sons who still form part of the coparcenary whereas the undivided sons have ceased to be coparceners.

That very argument will show that in this case also the divided sons have ceased to be coparceners with their father and cannot claim joint tenancy and survivorship inter se Regarding self-acquired properties, the position is even stronger, as the self-acquired properties are strongly distinguished from the ancestral properties, as held by a Bench of this court in . The following observations in that ruling are significant :

"To ascertain the extent of the son's right in and to a particular property belonging to the father, it is absolutely necessary to determine whether that property is paithamaha or swayarjita. This dichotomous division is fundamental. According to Hindu law (and in this there is no difference between the Dayabhaga and the Mitakshara) property must be one or the other. This division is not only mutually exclusive. It must also be exhaustive. You cannot leave out a property as not falling in either category, because how then will you determine the extent of the son's right in such property?"

As there is no coparcenary in modern law between the Hindu father and his undivided sons regarding his self-acquired properties, as held in <NAME> v. <NAME> of <NAME>, 9 Moo Ind App 539 (PC), it is of importance to note that even regarding such self-acquired property the undivided son, even though he may not he the eldest or next son, will take the entire self-acquired property to the exclusion of his father.

10. Mr. <NAME> urged that a great deal of confusion has arisen regarding these matters by the mistranslation of the Sanskrit term daya by <NAME> who translated it as "inheritance" whereas daya includes the taking of property during the lifetime of the father and not merely to taking of his property after his death as his heir, and by the importation of English legal conceptions and phraseology. These two factors conducing to confusion have been noticed by the learned Chief Jus-lice in ILR , but the learned Chief Justice has gone on to observe :

''However deplorable this may be, we are at a stage when we are not free to go back to the law as enunciated and discussed in ancient books on Hindu law untrammelled by judicial decisions. There can be no doubt that as between an original text and a decision of <ORG>, we cannot choose to follow the former and refuse to be bound by the latter."

Mr. <NAME> urged that apratibandha succession (by sons, sons' sons, sons' sons' sons) and the right of representation would necessarily involve joint tenancy and survivorship even in the separate share of the father in the ancestral properties got by him at partition as the right by birth would otherwise be defeated. We do not see why the right by birth should be allowed to operate more than once. In our opinion, it exhausts itself by a complete partition of the ancestral and joint family properties.

It cannot again be asserted for setting up joint tenancy and survivorship in the father's share of the ancestral properties got at partition, when obviously no such joint tenancy and survivorship will attach to the shares got at partition by the brothers inter se. In our opinion, the apratibandha succession is put an end to at partition, and the saprati-badha succession takes its place even regarding the joint family properties got by the father at partition.

One incident of the obstructed inheritance is that no right in the properties can be affirmed by the successor during the lifetime of the owner (which is the main obstruction) whereas in the unobstructed inheritance the successor is already an owner in the property along with his father. No doubt, the translation of daya into "inheritance" by <NAME> may not be quite correct, and may apply only to the Dayabhaga system prevailing in Bengal, where <NAME> worked. But this will not affect the present point at issue.

11. Mr. <NAME> had to concede that if the father, long after the partition, got a son, that son alone would take the father's entire properties, ancestral and self-acquired, by right by birth, to the exclusion of the divided sons, whose "right by birth" will be of no avail. He said that this was due to a special text of Hindu law. We are of opinion that it is due also to the general principles of Hindu law.

12. Mr. <NAME> rightly urged that joint tenancy and survivorship are unknown to Hindu law except in the case of the joint property of an undivided Hindu; family governed by the Mitakshara law. He relied on the rulings of <ORG> in <NAME> v. <NAME>, ILR 23 Cal. 670, and <CITATION> , . This will take the bottom Out of the contention of Mr. <NAME>, who had to admit that the three sons were divided from Tirumalaiappa, and that the coparcenary between them and their father had ceased. This, of course, involves cessation of the inevitable concomitant incident of joint tenancy and survivorship contended for by Mr. <NAME>.

13. Mr. <NAME> urged that the widow is excluded from succession to her husband's right of co-ownership only when the co-ownership involves a joint tenancy governed by survivorship. He relied on the ruling in 9 Moo Ind App 539 (PC), and the observations at pages 611 to 615 for this proposition. Mr. <NAME> was unable to meet this proposition and to deny the right of <NAME>'s widow under the Hindu Women's Right to Property Act , to share equally with the plaintiff. So, the lower court was undoubtedly right in rejecting the plaintiffs' contention that the widow had no rights in the properties. Three Benches of this court (to two of which both of us were parties and to the third of which one of us was a party) have upheld the widow's right.

14. The right of representation was the last thing on which Mr. <NAME> relied. According to him, in other cases of inheritance it is the nearest heir who will succeed to the properties, excluding the remoter heirs, whereas with regard to the father's properties, the son, the son's son, and the son's son's son will take in a group and at the same time, and not one after another, and that, therefore, it must be apratibandha succession, and the incidents of joint tenancy and survivorship will remain in the father's share of the ancestral properties got by him at partition.

We cannot agree. Hindu law, like all other laws, is not always consistent or logical, and, sometimes, it is difficult to reconcile all the principles into one grand principle. Thus all the widows, as also daughters, take jointly, though none of them are coparceners. The line of succession even to the self-acquired properties of the father is, no doubt, in a group, by a son, son's son, and son's son's son, and the right of representation thus remains, the living sons not excluding their deceased brother's sons.

But that will not show that joint tenancy and survivorship exist in the father's share of the ancestral properties any more than in his self-acquired properties. There is no logic or reason in contending that divided sons of the father, owning their properties severally, should take the divided ancestral properties of their father jointly with eights of survivorship. There is also no ruling holding td that effect.

15. In the end, therefore, we reject Mr. <NAME>'s contention. It follows from this that the lower court was right in giving the plaintiffs only 1/6th share in the properties in schedules 1 (a) to (h), and l/24th share in the properties in the second schedule.

16. The two memoranda of cross-objections do not deserve serious consideration. The lower court has passed its order regarding costs after carefully considering the point, and we cannot say that it has exercised its discretion wrongly. Besides the reasons given by it for not giving costs to the first and fifth defendants, who have filed the memoranda of cross-objections, we may add another reason. The law had not been clarified by that time in this State, and there was a great deal of doubt.

That is why the arguments in this ease have gone on for two days before us. In such a case, where the low is settled for the first time, it is only proper that all the parties should be directed to bear their own costs. In the end, therefore, we dismiss the appeal and both the memoranda of cross-objections, and confirm the lower court's decree and judgment. In this appeal and the memoranda of cross-objections we direct all the parties to bear their own costs.

<NAME>, J.

17. I entirely agree with the reasoning & conclusions arrived at by my learned brother in the judgment which, he has just now delivered. I only wish to add a few words of my own on the point raised by Mr. <NAME> for decision in this appeal. The relevant facts have been set out exhaustively by my learned brother, and it is not for me to traverse them over again in any great detail. I shall only be brief in regard to them.

18. <NAME> entered into a partition with his three sons, <NAME>, <NAME> and <NAME>, under Ex. A.1 on the 18th June, 1930. After executing a will, Ex. A.3. dated 14th September, 1930, in favour of his wife, he died on the 22nd November, 1930. At the time of his death all his three sons, amongst whom and himself there was a partition, were alive. The third son died earliest, that is, on the 4th January, 1936, and the first son on 11th January, 1950, whereas the donee under the will, in whose favour a life estate was created, died on the 12th May, 1954.

<NAME>'s widow, the 6th defendant, adopted the plaintiff-appellant to her deceased husband. The widow of the third son Shanmugakumara-swami figures as the 5th defendant. The 7th defendant is another wife of <NAME>, whereas the 5th defendant is the daughter of <NAME>. Defendants 1 to 4 are respectively surviving son of <NAME> namely, <NAME> and the latter's three sons. That there was a partition between the father and the three sons on the 18th June 1930 if not in dispute. Nor is the will executed by the said <NAME> in favour of his wife in controversy. The life estate created in her favour is also beyond dispute.

19. The suit was laid by the present plaintiff-appellant after the death of the widow of <NAME>, claiming a half share in schedules 1-A to 1-H and also a 1/8th share in Schedule 2. It is also not in dispute that the properties described in Schedule 2 were kept in common without a division by metes and bounds. In a very cleverly drafted plaint, on behalf of the plaintiff-appellant, it was claimed that on the death of the widow of <NAME> the law returned the subjects of the bequest of the testator, and that there was and could be no anterior vesting.

Therefore, it was averred that in the case of a "return" or "reversion" which arose by operation of law, there was and could be no vesting in interest apart from possession. It was contended that the reversion was to the persons who would on that date normally succeed as heirs to the testator, and in that case it is claimed that they were only his sons and son's sons. It was also contended in the plaint that the testator must be deemed to have died intestate on the 22nd November, 1930, and that, therefore, Sections 4 and 5 of the Madras Adaptation of the Hindu Women's Right to Property Act , 1937 did not have any operation on the estate.

In another paragraph of the plaint it was contended that even assuming but without admitting that the reversion to the separate estate of <NAME> on the death of his widow, <NAME>, though an incorporeal right, vested on the 22nd November, 1930, itself, under the law it devolved on all the three sons together as joint undivided property, and consequently, there would be a coparcenary of the three brothers with rights of survivership inter se, and there had been no subsequent partition between them of that coparcenary right.

It was, therefore, further contended that on the death of <NAME>, the third son, without male issue and before the Hindu Women's Right to Property Act came into force with reference to agricultural lands in Madras, the said incorporeal right devolved on the second surviving brothers, <NAME> and Kumaraswamishanmuga, and <NAME>, the 5th defendant, got nothing.

A further contention, was put forward in that neither the 6th defendant nor the 7th defendant would he entitled to any right in the schedule properties for the reason that nothing vested in Shanmugakumaraswami on the 22nd November, 1930. Therefore, the 5th defendant got no additional rights in the schedule properties in consequence of <NAME> death. On these grounds the plaintiff claimed that he would be entitled to a half of Schedule I-A to 1-H and an 1/8th share in Schedule II leaving an equal portion in both to defendants 1 to 4.

20. Defendants 1 to 4 contested the suit on various grounds inter alia. Their contention in the main was that on the death of <NAME>, the remainder after what had been given to his wife, <NAME>, descended to his three sons who were all alive then, as on intestacy. They were co-heirs or co-sharers in respect of the same. The two sons, Shanmugakumaraswami and <NAME>, having died on the dates mentioned above, one-third share of Shanmugakumaraswami descended to his widow, the 5th defendant, and the 1/3rd share of <NAME> descended to his wife, the 6th defendant, and his adopted son, the plaintiff, as simultaneous heirs under Hindu Women's Properly. Act.

Therefore, it was pleaded that the plaintiff-appellant would he entitled to only 1/6th share and the 6th defendant to the other 1/6th share and the first defendant to a third share as the heir of his father. The defendants contended that the claim of the plaintiff to a half share was wholly untenable, though they admitted that the second schedule properties remained undivided between the shares and that <ORG> was owned in common.

They did not admit the legal position set out in the plaint as to the devolution of the property on the death of Thirumalaippa, the original ancestor, There was no question of reverter of any remainder as alleged by the plaintiff. As soon as the father died, it was their contention, succession to the remainder opened and the sons as co-heirs got a vested remainder each being entitled to a third. They also contested the suit on the point that it was not correct to work out the heirs to <NAME> as on 12-5-1954 but that the estate should be taken to have opened on the death of <NAME>, namely, the 22nd of November 1930.

21. The learned trial judge, after framing the necessary issues, rejected the claim of the plaintiff to a half and 1/8th share in the concerned properties & upheld the claim of the defendants that the plaintiff would be entitled only to 1/6th share and 1/24th share in the properties 1-A to 1-H of Schedule 1 and Schedule 2 respectively. The lower court also held that the succession opened only on the death of <NAME> and not on the death of his widow.

22. In this appeal Mr. <NAME> has been at great pains to uphold the contention of the plain-tiff, that on the death of <NAME>, which has been held to be the date on which succession opened, the three sons of <NAME> would succeed, not as divided sons but as undivided sons, to the estate left by the said deceased, <NAME>. His point was that whether the sons were divided or undivided, they would succeed to their father as joint tenants by right of birth and he also went further and argued that this would be the case whether the property was ancestral or otherwise.

In support of his contention, that on the death of the father who had taken his share of the joint family property at a partition between himself and his sons, the property taken by the father will remain joint family property, though for certain purposes it is termed as separate property, and that succession to that properly on his death would be only accordingly to what is known in Hindu law as the rule of "apratibandha", that is, unobstructed succession, and not according to the rule of obstructed succession, namely, "sapratibandha".

Mr. <NAME> relied On many decisions of this court and other courts in support of his contention that whether it be joint family property or self acquired property the rule of succession by the sons on the death of their father was only by right of birth and that being so, it was only "apratibandha" succession and not "sapratibandha" succession. It will be seen presently that these decisions, which Mr. <NAME> referred to at length and on which he laid great emphasis, did not directly deal with the point; and in fact, it is because of the absence of a direct decision of this <ORG> on the point argued by Mr. <NAME> that he had to labour hard in order to make us agree with his contention.

There can be little doubt that the property taken by the father in a partition by <NAME> and bounds with his sons becomes the separate property of the father, and that it does not lose the character of being joint family or ancestral property as long its it is in his hands. It is also beyond dispute that in regard to this property, which has been taken by the father at partition between, himself and his sons, it is capable of being willed away or even gifted away; for, in respect of this property, a light to claim a partition has been lost once for all by reason of the partition which has already taken place.

Even so, in regard to this property it is beyond question that the right of the erstwhile coparceners, to interdict any alienation by the father had been taken away and put an end to once for all. But it is also a fact that for certain limited purposes, the property in the hands of the father, nevertheless remains joint, and ancestral, though it does not become his self acquired property. For instance, if a son is born to the father when he holds the properly which he got at a partition, that son would be entitled to claim a right to partition in that property, though the remaining sons would not be so entitled.

He would become a coparcener with the-father and then he will have also right to interdict any alienation by the father except for legal necessity and any binding purpose. That is how the right by birth becomes operative in respect of the partitioned property in the hands of the father. Belying on the decisions in 20 Suth WR 189, <ORG> (FB) and <NAME> v. <NAME>, ILR 30 Mad 348, mainly, Mr. <NAME> contended that it has been recognised that the property obtained, by the father at a partition among himself and his sons remains joint property, and therefore, whether the sons were divided or undivided at the time when the succession opened on the death of the father, the sons would take the property by right of birth, according to the rule of unobstructed heritage, that is to say, as joint tenants as if they wore members of a coparcenary and nut as it they were tenants-in-common in a divided family. In 20 Suth WR 189, the earliest decision which was brought to our notice, by the learned counsel for the appellant, Mr. <NAME>, the following observations were relied on by the learned counsel :

"The distinction between a joint property and separate property under the Mitakshara law appears to me to be simply of a temporary, not of an abiding, character. Property is joint when it belongs to all the members, who may be many, of a joint family. Property is separate when it belongs only to one member of a joint family alone, and not to the others jointly with him. As long as it is separate and in the condition of self-acquired property, the person who is the holder of it has no one to consult in regard to the disposal of it except himself. But the moment it passes from his hand by descent into the hands of some one in the next generation, it becomes joint family property -- the property of several persons united together as a joint family with regard to it -- the property of a new joint family springing from a new root. And it continues to go down by one rule of descent only."

Having carefully considered this dictum of <ORG> in the case cited, it is difficult to agree with Mr. <NAME> that it supports him to any extent. Mr. <NAME> misses the point that the case refers to the property "becoming joint family property the property of several persons united together as a joint family with regard to it, that is to say, the property becomes that of a new joint family springing from a new root."

This decision does not in any way lay down the rule that once there is a partition and when the sons become divided from the father, on the death of the father the sons would be entitled to claim the property as members or coparceners of a joint family according to the rule of "aprati-bandha" or as joint tenants, whether the sons are divided or undivided.

That is to say what in effect Mr. <NAME> wants us to hold is that the partition which had taken place between the father and his sons should be completely ignored and that on his death the status quo ante should he restored us it there was no prior partition for the simple reason that by a partition the filial relation between the father and the sons was not in any way cut off I Act continued, notwithstanding the fact that a partition had taken place between the father and the sons at an earlier stage. In support of this aspect of his argument, Mr. <NAME> invited our attention to a decision in ILR 2 Mad 182 (FB).

In that decision <ORG> of this court observed that under the Mitakshara law a divided son (no undivided sons surviving) is entitled to succeed to his father's share in preference to his father's widow. It was held that the son's right to inheritance under Hindu law is distinguished from that of all other heirs in that it is "aprati-bandha" not liable to obstruction, and the functions assigned to the son, and the character ascribed to him in the religious system of the Hindus, explain the preference in the succession accorded to him. Mr. <NAME>, in particular, invited our attention to the passage that occurs at p. 184 which is to the following effect:

"The effect of partition is not to interfere with the right of inheritance, but to resolve joint rights into several rights. It frees so much of the estate as falls to the lot of his father from any present proprietary right on the part of the divided son, but it does not annul the filial relation nor the right of succession, which, in the absence of disqualification, is incidental to that relation."

The proposition laid down is certainly unexceptionable. It does not however state in least manner that when the inheritance opened, the divided sons and the undivided sons would take in the same right and according to the same rule of succession, as if there was no partition at all. In the case of the divided sons, it has been repeatedly held that the rule of succession is "sapratibandha," that is, obstructed heritage, because in respect of the property held by the father, the death of the father has the effect of removing the obstruction.

The dictum relied on by Mr. <NAME> merely says that the fact of partition does not interfere with the right of inheritance by the sons. Certainly it does not. But the case did not decide as to what exactly was rule of inheritance, whether it would be obstructed or unobstructed heritage. Surely, when once a partition is effected between the father and his sons, the filial relation between the father and the sons is not affected, and particularly the duties which the sons are called upon to perform in respect of the funeral ceremonies of the father are not in any way taken away, but that does not mean that the rule of succession in respect of the property left by him, whether joint or self-acquired, remained the same despite the fact of the coparcenary interest between the father and the sons having come to an end by means of the partition already effected. It is, therefore, impossible to hold that this decision is of any great assistance to Mr. <NAME>.

23. The next decision on which Mr. <NAME> relied is one reported in <ORG>. This decision is on the same lines as the decision in <ORG> (FB) and holds that the right of divided sons, grandsons, and great grandsons of the last male owner to succeed to his divided property, is the same as in the ease of undivided family property.

The right of representation exists equally in the former as in the latter case, and the divided sons will not, on the principle of the exclusion of remoter by nearer sapinda, exclude the divided grandson in the succession to divided property of the ancestor. A careful reading of this decision and the observations made therein would however show that this decision will not help Mr. <NAME> even as the decision in ILR 2 Mad 182 (FB).

This is a case of succession to divided property between divided sons, grandsons and great grandsons and not as between divided sons and undivided sons. In further support of his contention Mr. <NAME> relied upon <NAME> v. <NAME>, and <CITATION> ) . In , a Bench of that Court held that in the matter of succession to the grandfather's property the claim of the separated grandson and his sons in the Mithila school was governed by the Mitakshara.

As per <NAME> in that decision the principle of the Mitakshara was that the sons and grandson got unobstructed right (apratibandha-daya) by mere birth to the separate property of the grandfather. He held that "partition merely adjusted or resolved joint right into several rights, and that it freed the father's share from any present proprietary right on the part of the divided son, but it could not annul the filial relation nor the right of succession incidental to that relation.

That being the position, partition cannot annul or destroy the right of the grand-son, or the great grandson to the grandfathers' properly. Once again it has to be noted that the observations of the learned Judges do not deal with the point we are called upon to decide in this case, namely, whether the succession is to be according to the rule of <NAME> or S<NAME>,' There was no conflict in this case between divided and undivided sous, and the learned Judges were not called upon to decide any such issue.

The whole point pressed for by Mr. <NAME> is to the effect that the distinction between the continuance of a coparcenary before partition and its non-existence after partition should be ignored, when succession opens in respect of the property that became the separate property of the father at the partition between himself and his sons. In doing so, he misses the distinction between the existence of the right of a son to claim a partition of the property by reason of birth to his father whereby he becomes a coparcener of the family and the right of the son to claim a share in the property of the father on his death.

In the former case it cannot be disputed that the rights of the father and son to the property of the family co-exist. The moment the son is born he becomes entitled to claim the property as a joint tenant and to have a partition thereof. His birth imposes a restriction on the power of the father to dispose of the property except in cases of legal necessity etc. In the latter case, the rights of the son arise and are sought to be enforced only after the death of the father.

It is this essential distinction between the two aspects of inheritance that the learned counsel for the appellants ignores and wants us to uphold that even though the sons became divided from the father when the father died leaving the properties which he got under the partition, the divided song should inherit as if they were co-parceners; that is, by virtue of the right which co-existed in them along with thel right of the father in the joint family properties. It is difficult for us to uphold such a contention in the light of the progress that the Hindu law has made by reason of the several "rulings of courts in regard to "obstructed" and "unobstructed" heritage.

24. In the case of (S) also, the point that is now at issue did not arise directly, and, it may be observed that this decision followed merely the decision in and it is difficult to see how exactly this decision helps Mr. <NAME> on the point that he is urging before us.

25. In essence Mr. <NAME>'s argument amounts to this: The rule of inheritance should be with reference to the nature of the property or its character and not with reference to the status of the parties or- the character of the recipients, who are to take the property on the death of the father, the last owner? It is true, as already stated, that the property retains for some limited purposes, the character of an ancestral property or joint family property but it does not become the self-acquired property of the father.

But the ancestral or joint family property which remains so, for certain limited purposes, does it continue to be the same when it has to be succeeded to by the persons who are not any more members of the joint family or coparceners with the deceased father but are already divided. This is the question to which Mr. <NAME> would like us to give an answer in the affirmative. Bu we do not find it possible to do so.

We are unable to subscribe to this proposition of Mr. <NAME> that in regard to this property which retains to some limited extent the character of a joint family property, the succession thereto on the death of the father should be decided upon the status of the parties or the character of the recipients who are entitled to succeed to the same, ignoring the fact that these recipients had already ceased to be members of the coparcenary, under which alone such members could nave claimed a right by birth in order to be entitled to claim succession under the rule of unobstructed heritage.

When once there has been a division, though there has beenstill a continuation official relationship between the father and the sons, the divided sons have ceased, beyond any doubt, to be members of the coparcenary and they do not have any more right to the property by birth. That right by birth has been settled by the partition and in respect of that property which has fallen to the share of the father it is beyond comprehension as to how exactly the divided sons could still lay a claim co-extensive with that of the father or any of Ins undivided sons.

In the property which has fallen to the share of the father the right by birth has been lost by reason of the partition and even the right to interdict any alienation in respect of the property which became the separate property of the father has already been lost by reason of the same partition and how it is possible for the divided son to exercise or enforce these very rights in respect of the very same property passes beyond comprehension. That means, according to Mr. <NAME>, the right to claim by birth for a share jointly with the father as a coparcener in the property is never lost even though a partition might have taken place.

26. Then it remains to be seen as to what exactly is the effect of the partition, if the partition is to be ignored as being of no consequence. Is it also to be assumed that the coparcenary never ceased to exist even though a partition might take place between the coparceners of the joint family property? Or, is it to be postulated that at every stage the coparcener continues whenever the succession opens upon the death of the divided coparcener? All these points make the situation rather very anomalous if the argument of Mr. <NAME> is to be accepted.

27. He would nevertheless assert that division between the father and the sons makes no difference, and, simply because the joint family property that fell to the share of the father continues to he joint family property for some limited purposes the right by birth continues to exist in the sons to Succeed as if they were coparceners with the father, though he would concede that in respect of that property in the hands of the father the sons could not exercise the power of interdicting alienation or claiming a partition, again by right of birth.

28. Therefore, to argue that in respect of such separate property in the hands of the father the divided sons would succeed as if they were members of the coparcenary would lead to very strange results and would certainly nullify the effect of all partition between joint family members and also the meaning and weight to be attached to the existence of a coparcenary, or even the reunion of coparceners would come to nought.

29. Mr. <NAME>, however, contended when faced with the decision in ILR 44 Mad 499; (AIR 1921 Mad 168) (FB) and the decision in so far as the self-acquired property was concerned, the undivided sons would take by inheritance as tenants-in-common and that under the Hindu law there were only two types of succession, the unobstructed and the obstructed, and a third type of succession was unknown. He would however try to canvass against the correctness of the decision in ILR 44 Mad 499: (AIR 1921 Mad 168) (FB), if the opportunity exists.

30. So far as the <ORG> decision is concerned, as my learned brother has pointed out, that decision is binding on this Bench, and in so tar as self-acquired property is concerned, the rule of succession would be "sapratibandha" and not 'apratibandha" and, by no means could the self-acquired property be equated to the separate pro perty held by the father on partition. For, Mr. <NAME> himself conceded more than once in the course of his arguments that this property in the hands of the father on partition could only be a separate property with some characteristics of a joint family property, at lease for certain limited purposes.

31. The question that really has to be resolved then is as to whether on the death of the father holding property which fell to his share on partition the divided sons would succeed to it in the same manner as self-acquired property or in the manner pointed out by Mr. <NAME>. In the case of such property, if there are undivided sons, the divided sons would not get any priority over them, and, if there are divided sons, they cannot certainly succeed to that property as if the property was joint family property available to be taken by the divided sons in their right as joint tenants.

They would, on the other hand, take it only as tenants-in-common. His sons on the death of the father, as has been pointed but by Mr. <NAME> appearing on behalf of the respondents, have only a heirship right in the property left by the father. They have no right to the property during his lifetime by right of birth; nor would it be right to say that their succession to it could be by the "unobstructed" rule of heritage. Mr. <NAME> has rightly pointed out that inheritance that is consequent upon the demise of one holder is always obstructed heritage under the Mitakshara law.

When there is a right of birth the property vests jointly in all the persons who are entitled to it, the father and the sons, and the sons' right by birth to such property held jointly and in common by all the sons cannot be "sapratibandha". It is certainly "apratibandha", unobstructed heritage. My learned brother has pointed out how exactly the mistake has arisen with regard to the conception of the term "daya" in the Sanskrit books, and, I do not think I need repeat the same.

32. Mr. <NAME>, in the course of his arguments, brought to our notice the decisions in, 9 Moo Ind. App. 539 (PC), ILR 23 Cal 670, ILR 8 Luck 121; (AIR 1933 PC 72), and , from which the following propositions are deducible, viz, that the widow is excluded from succession to her husband's right of co-ownership only when the co-ownership is joint tenancy governed by the rule of survivorship and that the principle of joint tenancy and survivorship are un-Known to Hindu law except in the case of joint family property of an undivided Hindu family governed by the Mitakshara law.

These propositions postulate the existence of a joint Hindu family in that the principle of joint tenancy and survivorship may come into operation, either it be in regard to succession by the sons or in regard to succession by the widow. These propositions are well-established from the decisions of <ORG> and the decisions of this court.

33. A further proposition is also unexceptionable. As pointed out by Mr. <NAME>, the co-ownership has the character of joint tenancy only when it is created by "apratibandha" by right of birth and that co-ownership never has the character of apratibandha when it is created by inheritance that is, on the death of the last owner. The decisions in <ORG> v. <NAME>, ILR 20 Mad 207 and <ORG> v. <NAME>, ILR 17 Cal 3 (PC), are ample authority for this position.

34. Mr. <NAME> however argued that the right of birth is always dormant even in the case or separate property in the hands of the father, and, therefore, a claim could be made on the basis of that dormant right by the divided sons after the death of the father. That again is, in other words, saying that the property remains joint for all purposes, notwithstanding the partition that has taken place and despite the fact that the sons had left the coparcenary and ceased to be members thereof.

We are unable to agree with this contention of Mr. <NAME>. He seemed to argue that the right by birth, could be liquidated by instalments as well, as when the properties come into the hands of the divided member and passes to the divided sons on the death of the divided member. Even this proposition seems to be rather too wide of the actual scope of the Hindu law which is administered in this country.

35. Mr. <NAME>, laid emphasis on the rule of representation in support of his contention that the divided sons could take as joint tenants instead of as tenants-in-common. This aspect of the case has been dealt with by my learned brother in detail and I do not think I need take up the time ot this court in adding to what he has stated.

36. In the end, Mr. <NAME> further relied upon a decision in <NAME> v. <NAME>, 69 Mad LW (Andhra) 46. A reading of this decision would clearly show that it is of no assistance on the point that is urged by Mr. <NAME>.

37. In the result, as I have already observed, I have no hesitation in agreeing with my learned brother in the conclusions he has arrived at, and, this appeal and the memorandum of objections have to be dismissed in the terms already stated by my learned brother.


<NAME>, J.

1. This appeal, by special leave, arises out of proceedings started on a complaint filed by one <NAME> against the two appellants, of whom appellant No. 1, <NAME>, was Sub-Inspector of Police posted at Kumbala Police Station, and appellant No. 2, <NAME>, was the Station Writer of that Police Station. The complaint was Bled on the allegation that the complainant had cultivation, jointly with one <NAME>, of water melons in a field to the west of his house near a railway line, in Mogral village, and some adjoining fields were cultivated by others, two of whom were cited as his prosecution witnesses; they are <NAME> (P. W. 2) and <NAME> (P. W. 3). The telegraph wires running along the railway line passed over the fields of these two witnesses. The wires once broke down and it was found that a portion of the wires was missing. In that connection, two police constables went to the shop of <NAME>, P. W. 2, and questioned him at about 2-30 p. m. to find out if he had any knowledge about the missing telegraph wires. P. W. 2 accompanied the police constables to the fields also, but did not find any broken wires. Thereafter, the police questioned P. W. 3, <NAME>, and subsequently they also questioned these persons about the complainant and his partner <NAME>. In pursuance of this information, the complainant was taken to the police station on the ground that the Sub-Inspector wanted him. They arrived at the Police Station at about 4 p. m. At about 5 p. m. <NAME> was brought to the Police Station. Appellant No. 1, the Sub-Inspector, returned at about 6 or 6-30 p. m. and he then questioned them about the wires winch had broken down over their Reids. All the four persons denied any knowledge about it, whereupon appellant No. 1 saying "Don't you know it" gave slaps on the face of P. W., 2 and two fist blows on his chest. The complainant protested. Then, appellant No. 1 took hold of the complainant's shirt, took him inside a side-room, asked him to remove the shirt and undervest and wrist watch, and said to him that lie should tell the truth and confess. Thereafter, he gave him blows on the neck and fist blows on the chest. The complainant felt pains, raised cries and fell down. Thereafter, appellant No. 1 asked appellant No. 2 to bring a ruler and with that he gave blows on the soles of the fee! of the complainant until the complainant lost consciousness. The prosecution case was that the complainant regained his consciousness the hospital.

2. One M. C. Abdulkhadar, <NAME>, came to the <ORG> Station and asked appellant No. 1 to release the four persons whereafter the complainant was taken out of the room helped by the police constables. When the police constables let go of him, he fell down, whereupon <NAME>, M. C. Abdnlkhadar, went away saying that he did not want to interfere. While he was going away, he met P. W. 6, Ahamedkutty, the elder brother of <NAME>, and advised him to take the injured persons to the hospital, and accordingly, the complainant was taken in a car to the hospital, where his injuries were examined. He was admitted as an indoor patient, while <NAME> was treated as an out-patient. P. W. 6, the elder brother of Abdulla <NAME>, next day went to his lawyer, and as advised by him, he obtained the injury certificate of the complainant and then sent a complaint to the Superintendent of <ORG>, Cannanore. Since the case was not prosecuted by the <ORG>, the complainant filed his complaint in Court on these allegations.

3. The complaint purported to bring a charge under Section 330 of the Indian Penal Code against the two appellants which was an offence exclusively triable by <ORG>. The Magistrate who held the enquiry, however, came to the view that on the evidence adduced before him, there was no justification for committing the appellants for trial to <ORG>, and consequently, discharged them.

4. The complainant filed a revision in <ORG>, and the Sessions Judge directed the Magistrate to commit the appellants for trial. The appellants moved <ORG> against this order of the Sessions Judge, but that revision was also dismissed. Consequently, the appellants have come up in this appeal to this Court praying that the order of commitment passed by the Sessions Judge and upheld by <ORG> be set aside and the order of discharge by the Magistrate be restored.

5. The main point urged before us by learned counsel for the appellants was that in this case the Magistrate, in discharging the two appellants, had correctly exercised the-powers vested in him as an enquiring court under Section 209 of the Code of Criminal Procedure, and that the Sessions Judge was wrong in interfering with that order of the Magistrate. It was urged that <ORG> also committed an error in law in up holding that order of the Sessions Judge.

6. A perusal of the judgment of the committing Magistrate shows that he decided to discharge the appellants on three grounds. The first ground was that the appellants hud given very good evidence in defence before the enquiring Magistrate to prove that they were not at the Police Station at the time when the alleged offence is said to have been committed according to the complainant. The evidence which the Magistrate believed consisted of the documents maintained at the Police Station and the statements of police witnesses as well as the statements of some other witnesses who corroborated the version of the appellants that they had left the Police Station and were out making investigation in the case relating to the theft of telegraph wires. The second ground given by the Magistrate was that the medical evidence did not fully bear out the complainant's version; and the third ground was that the prosecution witnesses were interested persons. On these grounds, the Magistrate held that the evidence of the prosecution witnesses could not be relied upon.

7. It is to be noticed that, as held by the Sessions Judge and <ORG>, the Magistrate did not record any finding that there was no evidence in support of the prosecution case. In fact, a number of prosecution witnesses were examined who gave statements proving the various parts of the prosecution story. There were eye-witnesses, who deposed in support of the incident which was the subject-matter of the complaint. This evidence, if it had stood by itself, was very clear and was quite enough to prove the prosecution charge against the appellants.

8. What the Magistrate did was to hold that this prosecution evidence did not justify commitment of the case to <ORG> on the three grounds, which we have mentioned above. In fact, in dealing with the case, the Magistrate first dealt with the defence evidence and held that, since the plea of alibi of the appellants was supported by good documentary evidence contained in public documents, it was not possible to believe the prosecution version. The Magistrate ignored the fact that another <ORG> could reasonably take a view different from his. The documentary evidence which was relied upon consisted of documents prepared at the Police Station where both the appellants were themselves posted. The value to be attached to those documents, therefore, depended on the view which the <ORG> took after full investigation of facts relating to the circumstances in which these documents came into existence, and after taking into account the evidence produced in support of the genuineness and correctness of these documents.

9. Similarly, the medical evidence was also not of a conclusive nature against the prosecution. The complainant had alleged that he was given blows with the ruler on the soles of his feet until he became unconscious. The doctor's statement was that there were no external injuries visible on the soles of the feet. The Magistrate was of the view that the complainant could not have fainted and could not have suffered severe pain without appearance of external injuries. That was again a point on which another <ORG> could take a different view.

10. The third ground given by the Magistrate for disbelieving the prosecution witnesses was that they were all interested, because they were persons connected with the fields near which the telegraph wires were said to have been broken and stolen. Whether this was a sufficient ground to doubt the evidence of these witnesses, was again a point on which different views were possible.

11. It will thus be seen that there was nothing in the prosecution or the defence case which made the prosecution case inherently improbable, and there could be no justification for the Magistrate to hold that no Court could reasonably come to a conclusion on this material that the prosecution case had been established. It is clear that in these circumstances, what the Magistrate did was to appropriate to himself the function of judging whether the prosecution evidence was to be believed, or whether the defence evidence was to be believed in preference, and consequently, the evidence of the prosecution witnesses who gave eyewitness account of the offence was unreliable. No doubt a Magistrate enquiring into a case under Section 209 , Cr. P. C, is not to act. as a mere <ORG>, and has to come to a conclusion whether the case before him is fit for commitment of the accused to <ORG>; but in arriving at that conclusion, it is not the function of an enquiring Magistrate to weigh the pros and cons of the prosecution and defence evidence and to discharge the accused merely because in his view the defence evidence was better than the prosecution evidence.

12. On the question of the manner in which an enquiring Magistrate should exercise his jurisdiction in such a case, several decisions were cited before us. The earliest decision cited is in the case of Ram chandra <CITATION> , AIR 1935 Bom 137 where <NAME>, C.J. , held that a Sessions Judge can interfere with an order of discharge by a Magistrate if he finds that it was improper, and he can arrive at that conclusion not only on the ground that the order was perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence in the case, but also on the ground that the Magistrate has taken upon himself the discharge of a duty which under the Code is entrusted to <ORG>, that is to say, the duty of appreciation of evidence of doubtful credibility.

13. The next case cited is <CITATION> , AIR 1943 Oudh 233 where it was held that an enquiring Magistrate must see that a prim a facie case has been made out, and if he feels any doubt, he should commit the case to <ORG>. It is only where he comes to the conclusion that there is no reasonable possibility of conviction that he should discharge; and this discretion must be carefully exercised and wherever there is a possibility that different Courts might take different views of the evidence, he should leave it to <ORG> to decide. It cannot be said that the Magistrate has no discretion to weigh the evidence at all. He must clearly do so to some extent in order to decide whether a prima facie case has been made out and whether a conviction is possible. But these are the limits of his discretion and it is not his duty nor is it necessary for this purpose for him to examine the prosecution evidence with meticulous care, balance the evidence of one witness against the evidence of another, consider the probabilities of a conviction, or come to a conclusion on doubtful points.

14. The first case of this Court cited before us is that of <CITATION> , where the function of the Committing Magistrate was explained by saying "all that he had to consider was whether under Section 209(1) there were sufficient grounds for committing the appellant for trial and not whether, on an appreciation of the whole evidence and other material in the case including witnesses for the defence, the charge against him was proved."

15. This aspect was examined in more detail by this Court in the case of <CITATION> , where the law as stated in Halsbury's Laws of England, Vol. 10, 3rd Ed. (Lord <NAME>), in Art. 666 at p. 365, was quoted and approved. That principle laid down as follows:-

"When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether 'the accused is or is not to be committed for trial. Before determining this matter, they must take into consideration the evidence and any statement of the accused. If the justices are of opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence, they must commit him for trial in custody or on bail."

The Court then proceeded to hold that the Magistrate holding the inquiry, therefore, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit. That was the test that this Court applied in that case and came to the conclusion that it could not be said that there was no evidence to make out a prima facie case, because there was a large volume of oral evidence besides an unusually large volume of documentary evidence; and <ORG> had taken pains to point out that that was one of those cases where much could be said on both sides.

16. In the case before us, as we have already held above, there was direct evidence of prosecution witnesses to support the charge in the complaint and it could not be held that the witnesses who gave the evidence were such that there was no reasonable possibility of their being believed by any <ORG>. Consequently, it is clear that the Magistrate had committed an error in discharging the appellants, and the Sessions Judge was right in ordering commitment of the appellants to the <ORG> of Session for trial. His order was also rightly upheld by the High <ORG>.

17. In this connection, learned counsel for the appellants drew our attention to the difference in procedure applicable to inquiries under Section 207A and Section 209 of the Code of Criminal Procedure, and urged that in view of this difference, we should hold that in exercising his jurisdiction under Section 209 , the Committing Magistrate has a wider jurisdiction and is given discretion to weigh the prosecution and defence evidence and make an order of discharge in appropriate cases. We do not think that the introduction of Section 207A in the Code of Criminal Procedure by a subsequent amendment necessarily implies that the principles governing the exercise of jurisdiction by the Magistrate under Section 209 must thereafter be different from the principles which were held to govern his jurisdiction before this amendment. How that jurisdiction is to be exercised by a Magistrate when inquiring into a case under Section 207A need not be laid down by us in this case, where this question does not arise. We are only concerned with the interpretation of Section 209 and we have indicated above how the jurisdiction under that section should be exercised by a Magistrate.

18. In a subsequent case decided by this Court in <CITATION> , this aspect came up for investigation. The view taken by this Court was that the words of the two sections are not the same, and it is possible to say that the force of the two sections is also not the same, and that Section 209 gives a power to enter upon the merits of a case in a manner which Section 207A does not warrant. But the test for discharging the accused must, in a large way, be the same under both the sections. The Court held that it was hardly necessary to decide the full ambit of Section 207A , and contrast it with that of Section 209 ; and that if there was any indication in the language, it was altogether on the side that the Magistrate must find a stronger case for discharging the accused under Section 207A than under Section 209 . It was, however, nowhere said in that case that the test of judging the justification of an order of discharge by the Magistrate under Section 209 has been altered as a result of the enactment of Section 207A . Consequently, the principles laid down earlier in the cases we have referred to above, still hold good and on those principles the Sessions Judge was quite right in directing commitment of the appellants for trial to <ORG>. There is thus no merit in this appeal and it is dismissed.


JUDGMENT <NAME>, C.J.

1. <NAME> was working as a Missioner in <ORG>, Orissa, on a pay of Rs. 293 per month which included his salary, clearness allowance, house-rent, children's allowance etc. His headquarters was at Baptist Church Lane, Berhampur, in the district of Ganjam. He had gone to Rourkela in the district of Sundargarh on tour on 10-10-1963. At about 11-30 a. m. that day while he was going on a cycle, a Mercedes Benz Truck O. R. O. 2022 came at a very high speed and tan over him by rash and negligent driving. He died instantaneously on the spot as a result of the accident. The vehicle had been insured with <ORG>, Branch Janpath, New Delhi (hereinafter to be referred to as the Company) (<ORG>). The date of birth of the deceased was 13th April, 1905 and he was about 58 1/2 years old at the time of death. The ten claimants are the widow, sons and daughters of the deceased. An application for compensation was filed under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter to be referred to as the Act) before <ORG> (hereinafter to be referred to as the <ORG>) wherein Rs. 59,772/- was claimed as the amount of compensation. It was stated in the application that the deceased was very healthy and was expected to survive till his 75th year. The ancestors of the deceased were said to have lived up to the 80th year and the normal expectancy of life in the family of the deceased was not less than the 75th year. The amount of compensation was calculated with an expectancy of life for 17 years more on the basis of Rs. 283/- as the monthly income of the de-ceased. <ORG> and 2 were des-called as the owners of the vehicle. <ORG> having purchased the vehicle from <ORG> on hire-purchase system and all the instalments not having been paid by then.

The defence was that the deceased was a workman under the Workmen's Compensation Act and as such the <ORG> had no jurisdiction to entertain the claim. The claim was barred by limitation and the expectancy of life of the deceased cannot be more than 55 years. The monthly income of the declared had been highly exaggerated and the claim was excessive.

Five witnesses were examined on behalf of the petitioners and sons on behalf of the opposite parties. No documents were put in evidence except the post-mortem report and the F. I. R.

2. The <ORG> recorded the following findings:

(i) The deceased was killed by the rash and negligent driving of the driver of O. R. O. 2022;

(ii) The deceased was not a workman and the Workmen's Compensation Act has no application to this case;

(iii) The claim was not barred by limitation;

(iv) The monthly income of the deceased was Rs. 283/-;

(v) The petitioners were entitled to compensation at a round figure of Rs. 40,000/-which is to be paid by <NAME> (<ORG> 1).

The appeal has been filed by <ORG> making the petitioners and <ORG> 1 and 2 as respondents.

The first four findings are not assailed in this appeal.

3. Mr. <NAME> challenges the quantum of compensation and the extent of liability of the appellant,

4. The judgment of the learned <ORG> is somewhat superficial and does not refer to the relevant law on the point. It is therefore necessary to first state and analyse the relevant law.

5. Claims Tribunals have been constituted under Section 110 of the Act.

An application for compensation is to be filed under Section 110-A within a period of six months of the occurrence of the accident.

Section 110-B speaks of the award of <ORG>. It runs thus:--

" Section 110-B . Award of <ORG>s. -- On receipt of an application for compensation made under Section 110-A , <ORG> shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be."

Section 110-C deals with the procedurs and powers of Claims Tribunals.

Section 110-CC relates to award of interest where any chum is allowed. It lays down that where any <ORG> or <ORG> allows a claim for compensation made under Chapter VIII, such <ORG> or <ORG> may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. This section has been newly added by Act 56 of 1969 with effect from 2-3-1970 and as such is not applicable to this case, the petition for compensation having been filed on 8-12-1963.

Section 110-D provides for appeals. Any person aggrieved by the award may prefer an appeal to <ORG> within 90 days from the date of the award.

Section 110-F bars the jurisdiction of <ORG>. It says that where <ORG> has been constituted for any area, <ORG> shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by <ORG> for that area, and no injunction in respect of any action taken or to be taken by or before <ORG> in respect of the claim for compensation shall be granted by <ORG>.

6. The object of this group of Sections 110 to 110-F of the Act is to supply a cheap and expeditious mode of enforcing liability arising out of claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both as referred to in Section 110 . Prior to the constitution of the <ORG>, compensation could be claimed by institution of suits for damages only through the medium of <ORG> on payment of ad valorem court fee. This group of sections furnishes a self-contained Code that the claims can be lodged on the basis of an application without payment of ad valorem court-fee. By providing a direct appeal to <ORG> second appeals are also dispensed with. The <ORG> is to follow a summary procedure in determining compensation. Despite a self-contained Code of procedure for adjudication of claims being provided, the lections do not deal with the substantive law regarding determination of liability. They only furnish a new mode of enforcing liability. For determination of liability one has still to look to the substantive law in the law of torts and the Fatal Accidents Act , 1855 (hereinafter to be referred to as the 1855 Act) or at any rate to the principles thereof. Section 110-B merely says that the <ORG> may make an award determining the amount of compensation which appears to it to be just. The objective factors which would constitute the basis of compensation appearing as just have not been indicated in the section. The expression "which appears to it to be just" however vests a wide discretion in the <ORG> in the matter of determination of compensation. Despite the wide amplitude of such power, the determination cannot be arbitrary and must be based on certain data establishing reasonable nexus between the loss incurred and the compensation to be awarded.

7. The burden of proof is undoubtedly on the claimants to establish the necessary ingredients for obtaining compensation (See AIR 1962 SC 1 para 8, <CITATION> .) It is for them to plead and prove that there was an accident involving death arising out of the use of motor vehicles and the loss accruing to them in terms of money value.

8. The substantive law as to how such compensation is to be determined is found in <CITATION> of the 1855 Act. That section may be extracted:

" <CITATION> . Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong--Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child if any, of the person whose death shall have been so caused, and shall be brought by and in name of the executor, administrator or representative of the person deceased;

and in every such action the <ORG> may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom end for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the <ORG> by its judgment or decree shall direct".

On analysis of the aforesaid section it is clear that to determine compensation the <ORG> has to first find out the income of the deceased while he was alive. It must further find out as to what portion out of this income he used to contribute or spend for his family.

The claim for compensation shall be only for the benefit of the family members, the representatives of the person deceased. As the contribution by the deceased of a portion of his income for the benefit of his family members could be made only during the life time the expectancy of living of the deceased must be determined. In other words the <ORG> has to find put the span of life of the deceased. This would depend upon various factors such as the age, the bodily health and the possibility of premature determination of his life by later accidents. The 1855 Act is modelled on Fatal Accidents Act as in force in the United Kingdom. A masterly exposition of law is given by Viscount <NAME> in 1951 AC 601. (<NAME> v. <ORG>). At page 615 his Lordship observed thus:

"it is necessary first to estimate what was the deceased man's expectation of life if he had not been killed when ho was; (let this be "x" years) and next what sums during these x years he would probably have applied to the support of his wife. In fixing x, regard must be had not only to his age and bodily health, but to the possibility of a premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available; though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might have grown or wilted. In the present case it is known that in the years 1945-1948 which immediately preceded his death, his "drawings" from his business averaged $ 2,600 per annum. His wife's maintenance was derived from, and could not have exceeded these drawings. What proportion of such amount he in fact contributed to her support is a matter of guess-work, but both his widow and her sister give him a good character for generosity. He was a "good provider". Supposing, by this method an estimated annual sum of $ y is arrived at as the sum which would have been applied for the benefit of the plaintiff for x more years, the sum to be awarded is not simply $ y multiplied by x, because that sum is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at his death as damages. Then a deduction must therefore be made for the benefit accruing to the widow from the acceleration of her interest in his estate on his death intestate in 1949 (She came into $ 6.500 one-third of his estate, x years sooner than she would otherwise have done) and of her interest in sums payable on a policy of $ 1,000 on his life; and a further allowance must be made for a possibility which might have been realised if he had not been killed but had embarked on his allotted span of x years, namely, the possibility that the wife might have died before he did. And there is a further possibility to be allowed for -- though in most cases it is incapable of evaluation -- namely, the possibility that in the events which have actually happened, the widow might re-marry, in circumstances which would improve her financial position". This decision was approved and followed in AIR 1962 SC 1. The same view has been taken in AIR 1966 SC 1750. ( <CITATION> ); AIR 1970 SC 376, (C.K. Subra-monia Iyer v. <NAME>); AIR 1971 SC 1624 ( <CITATION> .) & AIR 1967 Orissa 116, ( <CITATION> ). It is not necessary to refer to a large many decisions of the different <ORG> in the same line.

9. In this case the factors to be taken into consideration for determining the quantum of compensation are few. There is no evidence that the deceased had estate which his heirs would inherit. The only features relevant for consideration in this case are the income of the deceased while he was alive, his expectancy of living and the portion out of the income which he was spending on account of the claimants. It is not disputed that the monthly income of the deceased was Rs. 283/-. The constituents of this Rs. 283/- were his pay and D. A. of Rs, 195/-, house-rent of Rs. 40/- and children's allowance of Rs. 48/-. House-rent of Rs. 40/- and children's allowance of Rs. 48/- were being definitely spent by the deceased for the members of the family. Out of the paltry amount of Rs. 195/- as pay and D. A. the maximum that the deceased could spend for himself would be estimated at Rs. 90/-. He is to be taken to be spending the balance of Rs. 105/- for the benefit of the claim-ants. Thus, out of the total monthly income of Rs. 283/- the deceased is likely to have been spending Rs. 193/- for the benefit of his family members.

The expectancy of life of the deceased has been estimated at 70 years; the deceased, however, died at the age of 58 1/2 years. Accepting the expected span of life to be 70 years he had a further span of Hi years. During this period he would have contributed Rs. 26,634/- at the rate of Rs. 193/- per month.

10. As has already been discussed, the claimants could not have been entitled to this lump sum if the deceased had been alive. The sum to be awarded is to be spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at the time of death as damages. Ordinarily one-sixth of the total amount is deducted for fixing the lump sum (see 1970 Acc CJ 84 ( <CITATION> ), If l/6th is deducted. Rs. 26,634/- come to Rs. 22,195/-.

The determination of the question of compensation depends upon several imponderables. In making such assessment there is likely to be a margin of error, Taking this margin of error into consideration it would be just if the claimants are awarded a round sum of Rs. 21,000/-as compensation.

11. The next question for consideration is how this liability would be apportioned between the owner respondent No. II and the appellant.

Section 95 (2) of the Act runs thus "95(2). Subject to the proviso to Sub-section (l) a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits namely:--

(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, including the liabilities, if any, arising, under the Workmen's Compensation Act , 1923 in respect of the death of, or bodily injury to employees (other than the driver), not exceeding six in number being carried in the vehicle".

It is to be noted that Rs. 20,000/- has now been enhanced to Rs. 50,000/- in Act 56 of 1969. We are however con-cerned with the limit of Rs. 20,000/- as it was prior to the amendment.

The vehicle being a goods vehicle the liability of the appellant is limited to Rs. 20,000/- under Section 95 (2) (a). The language of Section is clear (see however 1970 Acc CJ 451 = (AIR 1971 Mad 143). <CITATION> . Co. Ltd. and AIR 1971 SC 1624.) Out of the compensation of Rupees 21,000/- awarded against the owner <NAME> (respondent No. II) the appellant would pay a sum of Rupees 20,000/-.

12. The last question for consideration is whether the claimants are entitled to any interest on the compensation awarded. As has already been stated. Section 110-CC providing for award of interest where any claim is allowed was incorporated into the statute by Act 56 of 1969 which was to be effective from 2-3-1970. Prior to that there was no statutory provision for awarding interest. The question for consideration is whether in the absence of positive statutory provision interest cannot be awarded. No decision under the Act has been brought to our notice wherein this question was discussed and a conclusion was reached one way or the other. Guidance must, therefore, be sought from decisions under Other statutes where interest was granted on compensation awarded in the absence Of statutory provision. AIR 1963 SC 1171, ( <CITATION> ) dealt with a case of grant of compensation under the Life Insurance Corporation Act , 1956. Their Lordships allowed interest even in the absence of statutory provision. They said that the Life Insurance Corporation Act and the Rules made thereunder do not contain any express provisions for grant of interest on the delayed payment of compensation. The principle applicable in respect of such a matter is that on entering possession the purchaser becomes entitled to the rents but if he has not paid the price, interest in equity is deemed payable by him on the purchase price which belongs to the seller. The claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of the right to retain possession.

In this case the claimants have been deprived of the compensation to which they were entitled from the date of the award. If the compensation amount would have been paid forthwith they could have deposited it in the bank and could have secured interest or could have utilised it much more usefully. Applying the principles of natural justice, there is, therefore, no reason why they should be deprived of interest. Similar view was taken in AIR 1967 SC 1030. ( <CITATION> ) and AIR 1967 SC 1032, ( <CITATION> .) where interest was awarded under the Arbitration Act even in the absence of any specific provision. The same view was also taken by this Court in (1971) 2 Cut WR 524, ( <CITATION> ).

On the aforesaid analysis we are satisfied that the claimants are entitled to interest. In view of the fact that they made a fabulous claim which has been almost reduced to half and for that reason the litigation was unnecessarily protracted, we would allow interest at 6% per annum from the date the award was made by the <ORG> as was done in 1970 Ace CJ 189 = (AIR 1970 Madh Pra 172), ( <CITATION> ).

13. To sum up-

(i) The claimants are entitled to a compensation of Rs. 21,000/- out of which the appellant is liable to pay Rs. 20,000/-

(ii) The compensation is payable with interest at 6 per cent per annum with effect from 15-10-1966 when the award was made by the <ORG>.

14. In the result the appeal is allowed in part as indicated above. As success is partial, parties are to bear their own costs.

<NAME>, <NAME>

15. I agree.


PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT08/02/1994 BENCH: SINGH N.P. (J) BENCH: <NAME>, <NAME> N. (J) CITATION: 1994 SCR (1) 700 1994 SCC (2) 521 JT 1994 (1) 574 1994 SCALE (1)469 ACT: HEADNOTE: JUDGMENT:

The Judgment of the Court was delivered by <NAME>, J.- These petitions under Article 32 of the Constitution have been filed on behalf of the three petitioners, questioning the validity of an order dated June 15, 1984 issued by the Chief Superintendent, <ORG><ORG>), New Delhi.2.After the petitioners had been duly registered as Pharmacists by the Registrar, <ORG>, they were appointed as Pharmacists in the <ORG>, <ORG>, in the scale of Rs 130-240. Since 1973 petitioners started getting the revised scale of Rs 330-560. A seniority list of Pharmacists in the pay scale of Rs 330-560 was prepared in which names of the petitioners were also included. The impugned orders dated June 15, 1984 were issued to the petitioners, saying that as they were covered by clause (d) of Section 31 of the Pharmacy Act, 1948 (hereinafter referred to as the 'Act'), their salary was being fixed in the scale of Rs 330-480 instead of Rs 330-560 with effect from 1973. It was further said that after completion of 10 years of service, they would be getting the scale of Rs 330-

560. There is no dispute that after completion of 10 years of service, petitioners have been getting the scale of Rs 330-560. According to the petitioners, the sudden reduction of the scale of pay from Rs 330-560 to Rs 330-480, after several years of the implementation of the said scale has not only affected financially but even the seniority of the petitioners.

3.It has been stated on behalf of the respondents that aforesaid order dated June 15, 1984 had been issued in view of the <ORG> letter dated August 12, 1975. It was pointed out that as the petitioners were not qualified Pharmacists possessing the qualifications mentioned in clauses (a), (b) and (c) of Sections 31 and 32 of the Act, they were not entitled to the pay scale of Rs 330-560 as per recommendation of <ORG> and by the impugned orders the pay scale recommended for them was implemented.

4. Section 31 of the Act says "3 1. A person who has attained the age of eighteen years' shall be entitled on payment of the prescribed fee to have his name entered in the first register if he resides, or carries on the business or profession of pharmacy, in the State and if he-

(a)holds a degree or diploma in pharmacy or pharmaceutical chemistry or a chemist and druggist diploma of an Indian University or <ORG>, as the case may be, or a prescribed qualification granted by an authority outside India, or

(b)holds a degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry, and has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than three years, or

(c)has passed an examination recognised as adequate by <ORG> for compounders or dispensers, or

(d) has been engaged in the compounding of drugs in a hospital or dispensary or other place in which drugs are regularly dispensed on prescriptions of medical practitioners for a total period of not less than five years prior to the date notified under sub-section (2) of Section 30 ." 5. <ORG> recommended the two revised scales of

5.The third pay to the Pharmacists Grade-B, classifying them into two categories according to their qualifications. In other words, the Pharmacists Grade-B who were getting the scale of Rs 130-240 were put in two categories with reference to their qualification and two scales of pay were recommended which are as follows :

Original Revised Scale Qualification Scale Pharmacist 130-240 330-10-380- For fully qualified Grade-B. EB-12-500-Pharmacist i.e. those EB-15-560 possessing qualification mentioned in Sections 31 and 32 of Pharmacy Act, 1948 but excluding those covered by clause (d) of Section 31 of the Pharmacy Act.

Pharmacist 130-240 330-8-370- For unqualified Grade-B. 10-400-EB- Pharmacists i.e. those 10-480. covered by clause (d) of Section 31 of Pharmacy Act, or possessing registerable qualifications under that clause.

The said recommendation was given effect from January 1, 1973. There is no dispute that the petitioners are unqualified Pharmacists as such covered by clause (d) of Section 31 of the Act. In terms of the recommendation which was given effect to with effect from January 1, 1973, the petitioners were entitled to the scale of Rs 330-480. But they were getting the pay scale of Rs 330-560 which was meant for qualified Pharmacists i.e. those possessing qualifications mentioned in Sections 31 and 32 of the Act excluding those covered by clause (d) of Section 31 of the Act.

6. According to the petitioners, although they possess the qualification prescribed under clause (d) of Section 31 but as throughout they had been treated on a par with the Pharmacists possessing qualifications prescribed in clauses

(a) to (c) of Sections 31 and 32 of the Act and they were getting the same scale of pay since 1973, the order dated June 15, 1984 reducing their scale of pay from Rs 330-560 to Rs 330-480 retrospectively, was arbitrary and discriminatory in nature.

7. During the hearing of the writ petitions, it was an admitted position that the petitioners do not hold the qualifications mentioned in clauses (a), (b) and (c) of Section 31 of the Act and they are only covered by clause

(d) of Section 31 . <ORG> placed Pharmacists Grade-B into two categories for prescribing the scales of pay (i) Pharmacists, fully qualified, who possessed the qualifications mentioned in clauses (a) to (c) of Section 3  1 , (ii) Pharmacists, who are covered by clause

(d) of Section 31 of the Act. That recommendation was given effect to w.e.f. January 1, 1973. As such in normal course, the petitioners were entitled to the scale of Rs 330480 and not the scale of Rs 330-560. But they were getting the scale of Rs 330-560 since 1973. Once it is established that the petitioners do not belong to the class of Pharmacists, who possessed the qualifications mentioned in clauses (a) to

(c) of Section 31 for whom the separate scale of pay was recommended by <ORG>, which was accepted by the <ORG> and implemented w.e.f. January 1, 1973, we fail to understand as to how the petitioners can claim the scale when they do not belong to same class or category.

8. The basis of the claim of the petitioners is that prior to January 1, 1973 there was only one scale of Rs 130-240 for Pharmacists who possessed the qualifications mentioned in clauses (a) to (c) of Section 31 as well as those who were covered by clause (d) of Section 31 i.e. who did not possess the qualifications mentioned in clauses (a) to (c). It is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them. When Section 31 itself conceives of different types of Pharmacists with reference to their academic qualifications and experience, then no fault can be found either with <ORG> or the respondents in putting the Pharmacists Grade-B in two categories with reference to their qualifications and experience and prescribing two scales of pay. In most of the services the scale of pay is linked with the academic performance, experience and it cannot be held that for one service there should be only one scale of pay ignoring the persons who possess the higher qualifications.

9. It was then urged on behalf of the petitioners that on principle of 'equal pay for equal work' they were entitled to pay scale of Rs 330-560. It was pointed out that they have been performing the same nature of work, which was being performed by other Pharmacists Grade-B who have been given the scale of Rs 330-560. The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them. The principle of 'equal pay for equal work' has been examined in <CITATION> by this <ORG>. Before any direction is issued by the <ORG>, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution.

10. In the facts of present case there is no scope for applying the principle of 'equal pay for equal work' when the petitioners belong to a separate category of Pharmacists with reference to the qualifications prescribed under the Act. According to us, there is no element of arbitrariness in the decision of the respondents to implement two scales of pay for two categories of Pharmacists Grade-B. It does not violate any of the provisions of the Constitution calling for interference by this Court.

11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of <ORG> w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to 1 (1993) 1 SCC 539: 1993 SCC (L&S) 221: (1993) 23 ATC 657 the fault of the respondents, the petitioners being in no way responsible for the same.

12. The petitions are allowed in part. There will be no order as to costs.

BOARD OF SCHOOL EDUCATION v. <NAME> (Agrawal, J.)