PETITIONER: <NAME> Vs. RESPONDENT: STATE OF J & K & OTHERS DATE OF JUDGMENT17/03/1982 BENCH: DESAI, D.A. BENCH: DESAI, D.A. ISLAM, BAHARUL (J) CITATION: 1982 AIR 1023 1982 SCR (3) 522 1982 SCC (2) 43 1982 SCALE (1)240 CITATOR INFO : F 1982 SC1539 (7) R 1982 SC1543 (13) R 1982 SC1548 (5) RF 1987 SC2098 (7) R 1989 SC1403 (8,10,11) R 1989 SC1861 (18) R 1989 SC2027 (18) RF 1990 SC1196 (10) RF 1990 SC1202 (6) ACT: Jammu & Kashmir Public Safety Act, 1978-Section 13(1)- Detaining authority must give the detenu earliest opportunity of making representation- Forwarding detenu's representation to <ORG>-Jail authorities-Mere channel of communication-Delay in transit-No excuse for delay in dealing with representation-Unexplained delay-Invalidates order of detention. HEADNOTE: The petitioner has arrested on June 26, 1981 under the Enemy Agent ordinance. The Chief Judicial Magistrate rejected his application for bail on the ground that he had no jurisdiction to try him. The Addl. Sessions Judge rejected his bail application on the ground that as ha was by then ordered to be detained under the J & K Public Safety Act the bail application has become infructuous. The detention order dated July 11, 1981 was served on the detenue in jail on July 15, 1981. His representation dated July 29, 1 981 was forwarded to the State <ORG> on July 29, 1981 and simultaneously a wireless message was sent on the same day. The representation was received by the <ORG> on August 12, 1981. After investigations the file was put up to the Chief Minister on August 28, 1981 for approval. The Chief Minister rejected the representation on August 31, 1981 which was communicated to the petitioner in jail on September 1, ]981. The detenu's case was referred to <ORG> on August 3, 1981. Its report was submitted on September 4, 1981. In this petition under art. 32 of the Constitution it was contended before this Court on behalf of the petitioner that as section 13 (1) of the Jammu & Kashmir Public Safety Act 1978 imposes an obligation on the detaining authority to give the detenu the earliest opportunity of making a representation against the detention order the long unexplained delay in this case had invalidated the order of detention. Allowing the petition, ^ HELD: The petitioner's representation had not been dealt with as expeditiously as possible. There was therefore contravention of section 13 of the Act which invalidated the detention. [532 D] Preventive detention, unlike punitive detention, does not afford an opportunity to the detenu to explain his side of the matter before he is deprived 523 Of his liberty and therefore the statute makes it obligatory on the authorities to A afford him the earliest opportunity to represent his case and a corresponding obligation on the authority to consider the representation. The word "earliest" which qualifies the term "opportunity" must equally qualify the corresponding obligation of the State to deal with the representation if and when made as expeditiously as possible. [529 H; 530 A-B] The jail authorities who are merely a communicating channel have to move with promptitude so that sufficient guarantee of affording earliest opportunity of making the representation and the same reaching the <ORG> is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that time was lost in transit. <ORG> must gear up its own machinery to see that in these cases the representation reaches the <ORG> as early as possible and is considered by the authorities with equal promptitude. Any unexplained delay would be denial of the statutory protection given to the detenu. [530 D-G] In the instant case there were two time lags: the representation handed in to the Jail Superintendent on July 29, 1981 reached the <ORG> on August 12, 1981 after a time lag of fourteen days and the representation was disposed of on August 31, 1981 after a time lag of nineteen days and the delay has not been explained on any convincing ground. [531 F, 532 B] <NAME> v. State of West Bengal,  2 SCC 81, referred to. Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Where there is need to order preventive detention of a person already in jail the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. [528 F-G] In the instant case there is nothing to indicate awareness of the detaining authority that the detenu was already in jail for more than 16 days and Yet the impugned order was made. This clearly exhibits non-application of mind and would result in invalidation of the order. But the Court did not base its order on this ground. [528 G-H] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 9516 of 1981.

(Under article 32 of the Constitution) <NAME>, <NAME> & <NAME> for the Petitioner.

<NAME> and <NAME> for the Respondents, The Judgment of the Court was delivered by <ORG>, J. On February 9, 1982 we made an order quashing the detention order dated July 11, 1981 made by the District Magistrate, Jammu in exercise of the power conferred by Section 8 of The Jammu and Kashmir Public Safety Act, 1978 ('Act' for short) and we announced that the reasons would follow. Here are the reasons.

The detenu <NAME> was arrested on June 26, 1981. A petition was moved on his behalf before the Chief Judicial Magistrate Jammu praying for releasing the detenu, on bail. This petition for bail appears to have come up before the learned Magistrate on July 4, 1981 when the following order was made:

"I have heard the advocate for the applicant and perused the C.D. File. Put up for orders on 6.7.81."

When the matter again came up on July 6, 1981, the learned Magistrate made the following order:

"Although there was nothing in the C.D. File about his (Petitioner) involvement in E.A.O. (Enemy Agents ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is u/s 3, E.A.O. which this Court is not competent to try. Hence this application is returned to the applicant for presentation to the proper court alongwith report "

The detenu thereupon moved an application for releasing him on bail before the learned Additional Sessions Judge, Jammu, who, we are informed, was competent to try the accused charged with an offence under Enemy Agents ordinance. His petition for bail came up before the learned Additional Sessions Judge on July 11, 1981 when the following order was made:

"This application pertains to <NAME> accused who is involved for an offence under the Enemy Agents ordinance which is being investigated by <ORG>, Jammu. The learned Chief Prosecuting officer and the learned counsel for the accused have been heard.

During the course of arguments an order has been A shown to me by the police that said <NAME> accused has now been ordered to be detained under the Public Safety Act.

In view of this order, this bail application has become infructuous which is disposed of accordingly."

The detenu was served with the detention order dated July 11, 1981 on the same day in jail because he was already in jail from June 25, 1981. The grounds for detention were served on him on July 15, 1981. The detenu submitted his representation dated July 29, 1981 addressed to the Secretary <ORG> to the Superintendent, <ORG>, Jammu where the detenu was detained. One Shri K.D. Sharma, Incharge Superintendent, <ORG> Jammu has stated in his affidavit dated February 6, 1982 that the representation of the detenu dated July 29, 1981 was forwarded to the Government at Srinagar vide office letter No. 2595 dated July 29, 1981 and simultaneously a wireless message No. 2596 on the same day was also sent to the Government intimating that the representation of the detenu had been forwarded to the Government for appropriate action. Mr. <NAME>, Deputy Secretary to <ORG>, <ORG>, Jammu, in his affidavit dated February 9, 1982 has stated that the 1 representation of the detenu was received from the Superintendent, <ORG>, Jammu in the office of the <ORG> at Srinagar on August 12, 1981. The department also received the comments of S.P., C.I.D. Counter Intelligence, Jammu and thereafter the case was processed on August 24, 1981 in the office of the <ORG> at Srinagar and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28,1981 to the Chief Minister (Home) From the same affidavit, it further transpires that the Chief Minister rejected the representation on August 31, 1981 and the same was communicated to the detenu on September 1, 1981. In the meantime, the case of the detenu was referred to <ORG> on August 3, 1981. <ORG> submitted its report to the Government on September 4, 1981.

one <NAME>, the brother of the detenu moved Petition No. 31 of 1981 for writ of Habeas Corpus in <ORG> at Jammu. The petition came up for hearing before the learned Single Judge, who by his judgment dated December 7, 1981 rejected the same. Thereafter the detenu by the present writ petition, moved this Court under Article 32 of the Constitution for a writ of Habeas Corpus.

Section 8 of the Act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the State. The impugned order of detention recites that the detenu is detained with a view to preventing him from 'acting in any manner prejudicial to the security of the State.' The expression 'acting in any manner prejudicial to the security of the State' has been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use offence, to overthrew or overawe the Government established by the law in the State. The detenu contended before <ORG> that accepting all the activities attributed to the detenu in the grounds of detention at their face value. the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the State.' The definition of the expression as here in before extracted indicates that the person accused of 'acting in any manner prejudicial to the security of the State' must be shown to be making preparations for using, or attempting to use, or using or instigating, inciting or provoking or otherwise abetting the use of force, and the intention or motive for the activity must be to overthrow or overawe the Government established by law in the State. The learned judge of <ORG> following an earlier <ORG> judgment of the same <ORG> in <NAME> v. State,(1) negatived this contention of serving that where the Government accusation against the detenu is that he had been indulging in supplying information for <ORG> and was passing on vital information pertaining to the <ORG> department etc. to that Agency, such activities were likely to assist Pakistan in any armed aggression against the State and were a threat to the security of the State. This view needs examination but as the argument was not pressed before us, we refrain from examining the same.

Number of contentions were advanced at the hearing of this petition but we propose to deal with only two of them which in our Opinion go to the root of the matter and which, when accepted, in our opinion, would result in invalidation of the order.

The first contention is that the order of the District Magistrate suffers from non-application of mind inasmuch as the date on which he passed the impugned order of detention dated July li, 1981, the detenu was long before arrested and locked up in Jail on the allegation that he was suspected to have committed some offence under the Enemy Agents ordinance 8 of Samvat Year 2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the <ORG>. The District Magistrate passed the impugned order of detention on being satisfied that with a view lo preventing the detenu from acting in a manner prejudicial to the security of the <ORG> it was necessary to detain him. The order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail. If the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail, the order ex facie would have shown that even though the detenu was in jail, with a view to preventing him from acting in a manner prejudicial to the security of the <ORG> it was necessary to detain him. There is a foot note in the order that the order was forwarded to <ORG> <ORG>, Jammu for execution of the order under section 3 of the Act. The further direction was that notice of the order shall be given to <NAME> s/o <NAME>, r/o H. No. 609, Peer Mitha, Jammu, by reading over and explaining the same to him in language he understands. The detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made. There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than lo days before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the <ORG>, and therefore power under section 8 of the Act is required to be . exercised.

The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct date being June 25, 1981, under a false and fabricated charge. <NAME>, Deputy Secretary to <ORG>, <ORG>, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very very ambiguous statement that for the purpose of J and K Public Safety Act the petitioner was arrested on July 11, 1981, pursuant to the detention order. It is no where suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the <ORG> to pass the detention order. lt may further be pointed out that <NAME>, the District Magistrate of Jammu who has made the impugned detention order, filed an affidavit on February 7, 1982. Of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of <NAME>, another detenu whose detention was quashed by this Court subsequent to the order of this Court. It may be noticed in passing that <NAME> and the detenu were involved jointly in the activity, which led to the detention of the detenu. Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a period of more than a fortnight before the date of the impugned detention order. Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the <ORG>. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an or-der of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. We, however, do not base our order on this ground.

The second contention which in our opinion goes to the root A of the matter is that there has been a violation of section 13 of the Act. Section 13 provides as under:

"13. Grounds of order of detention to be disclosed to persons affected by the order:-(I) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government."

x x x The provision contained in section 13 (1) is on par with the constitutional protection conferred by Article 22 (5) of the Constitution of India. The contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of detention, in order not to render it illusory simultaneously obliges the authority to whom the representation is made to consider the same expeditiously.

Submission is that a statutory right conferred on the detenu enabling him to make a representation which of necessity must be giving an opportunity to point out to the <ORG> as to why the detention order was not justified and that it must be revoked and the personal liberty deprived under the detention order must be restored, is to convince the <ORG> to take into consideration the facts and contentions set out in the representation, which must imply that the <ORG> must consider the same. The earliest opportunity to be afforded for making representation inheres the corresponding duty of the <ORG> to consider the representation so received expeditiously. The reason behind enacting this provision is manifest. When power to detain without trial is exercised, the authority exercising the power must afford an opportunity to the detenu to convince the <ORG>/detaining authority that the power was not justifiably exercised or no occasion arose for exercise of the power. In a punitive detention which is the end product of a trial in which the convict participates and has full opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the detenu to explain his side of the matter before he is deprived of the liberty and; therefore, so soon after the detenu is deprived of his personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent his side of the case and which inheres the corresponding obligation on the authority to consider the same. The word 'earliest' which qualifies the opportunity must equally qualify the corresponding obligation of the <ORG> to deal with the representation if and when made, as expeditiously as possible. The opportunity contemplated by the section is the opportunity to make a representation against the detention order to the <ORG> and therefore ex hypothese soon after the person is deprived of his personal liberty he must be afforded the earliest opportunity to make a representation. The representation is to be made tc. the <ORG>. Therefore the detenu who has already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities. The jail authority is merely a communicating channel because the representation has to reach the <ORG> which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the <ORG> is translated into action. The corresponding obligation of the <ORG> to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the <ORG> enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the <ORG> and not the detaining authority, of necessity the <ORG> <ORG> must gear up its own machinery to see that in these cases the representation reaches the <ORG> as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.

Reverting to the facts of this case, the detenu who in jail from June 25, 1981, was served with a detention order on July 11, 1981, the very day on which the detention order was made. The grounds of detention were served upon him on July 15, 1981. Admittedly the detenu submitted his representation to <NAME> on July 29, 1981. One K.D. Sharma, Medical officer, <ORG>, Jammu, Incharge <ORG>, Jammu who has filed his affidavit dated February 6, 1982, has admitted that the detenu submitted his representation addressed to the Secretary to the <ORG>, <ORG>, on July 29, 1981. He proceeds to assert that the said representation in original was forwarded by post to the <ORG> in Srinagar vide his office No. 2595 dated July 29, 1981. He further adds that a wireless message No. 2596 dated July 29, 1981, was also sent to the <ORG> to intimate that the representation of the detenu had been forwarded to the <ORG> for appropriate action. Postal communication from Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication. Nothing to that effect was brought to our notice. Now, <NAME> has stated in his counter affidavit that as no representation was received a wireless message was sent on August 6, 1981, making reference to the wireless communication from <NAME> that the representation referred to in the wireless message of the Jail Superintendent has still not been received at Srinagar. He requested the Superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment. Be that as it may, he says that the representation was received in the office on August 12, 1981. The comments from S.P., <ORG>, <ORG> were called for on August 14, 1981. He does not state the date on which they were received but he says that the case was examined and processed on August 24, 1981 in the office and the file was placed before the <ORG> Secretary on August 25, 1981, who recommended the same for approval on August 28, 1981, and the Chief Minister (<ORG>) rejected the representation on August 31, 1981, and the fact of rejection of the representation was communicated to the detenu on September 1, 1981. There are two time lags which may be noticed. Representation admittedly handed in <NAME> on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days. The second lime lag is, from our point of view, more glaring. Even though the concerned office was made aware of the fact by the wireless message of <NAME>, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the . first query about its non-receipt came as per the wireless message dated August 6, 1981. That can be overlooked, but it has one important message. The concerned office was aware of the fact that a representation has already been made and a duplicate was sent for. With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being August 12, 1981. If the representation was received on August 12, 1981, and the same office disposed it of on August 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of <NAME> is far from convincing. In our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds.

In <NAME> v. State of West Bengal,(l) this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of section 13 of the Act which would result in the invalidation of the order.

These are the reasons which had prompted us to quash and set aside the detention order.

P.B.R. Petition allowed.


CASE NO.: Appeal (crl.) 94 of 2000 PETITIONER: <NAME> AND ANR. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT: 28/01/2000 BENCH: K.T. THOMAS & M.B.SHAH JUDGMENT:

JUDGMENT 2000 (1) SCR 468 The Judgment of the Court was delivered by <NAME>, <NAME> <NAME> granted.

Can a "special court" which is envisaged in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989, (for short 'the Act') take cognizance of any offence without the case being committed to that court? If it cannot, then appellants cannot raise any grievance at this stage regarding framing of a charge against them as they would get an opportunity for it later. First appellant is a practicing advocate and second appellant is his wife who was working as Matron of a Girls' Hostel run by <ORG>. One <NAME> was a resident of the said hostel On 27.2.1996 the said <NAME> lodged a complaint with the police alleging that on 61.1996 the first appellant outraged/tried to outrage her modesty. The police after investigation, filed a charge-sheet directly before <ORG>, Karim Nagar (Andhra Pradesh) which was designated as the special court for trial of offences under the Act committed within the territorial limits of the district concerned. In the charge-sheet, first appellant is alleged to have committed the offence under Section 3(1) (XI) of the Act and also Section 354 of the Indian Penal Code. Besides first appellant, the investigating officer arrayed his wife as the second appellant for the offence under Section 201 of the Indian Penal Code in relation to the offences put against her husband, on the allegation that when Kumari <NAME> complained to the second appellant of the misdemeanor committed by the first accused, she tried to persuade the complainant not to divulge ft to anybody else. Subsequently the police dropped Section 354 of the  from the charge-sheet and filed a revised charge-sheet pursuant to a query put by the Special Judge concerned.

A charge was framed by the Special Judge against both the appel-lants for the aforesaid offences respectively. It was presumably at the said stage that the appellants moved <ORG> for quashing the charge as well as the charge-sheet on various reasons. A Single Judge of <ORG> of Andhra Pradesh found that the procedure adopted by the inves-tigating officer in filing the charge-sheet straight-away to <ORG> was not in accordance with law, and the Special Judge had no jurisdiction to take cognizance of any offence under the Act without the case having been committed to that court. Accordingly the learned Single Judge set aside the proceedings of <ORG> and directed the charge-sheet and the connected papers to be returned to the police officer concerned who, in turn, was directed to present the same before a Judicial Magistrate of 1st Class "for the purpose of committal to <ORG>". Learned Single Judge further directed that "on such committal the special Court shall frame appropriate charges in the light of the observations in the order."

Appellants have filed this appeal by special leave in challenge of the aforesaid order of the learned Single Judge of <ORG>.

We have to consider whether the Special Judge could take cog-nizance of the offence straightway without the case being committed to him. If <ORG> is <ORG> the interdict contained in Section 193 of the Code of criminal Procedure (for short 'the Code') would stand in the way. It reads thus :

"193. Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, <ORG> shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

So the first aspect to be considered is whether <ORG> is <ORG>. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices". Section 6 , which falls thereunder says that "there shall be, in every State,the following classes of Criminal Courts, namely :

(i) Courts of session;'' (The other classes of criminal courts enumerated thereunder are not relevant in this case and hence omitted.) Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of <ORG>, by notification in <ORG>, specify for each district <ORG> to be <ORG> to try the offences under this Act". So it is for trial of the offences under the Act that a particular <ORG> in each district is sought to be specified as <ORG>. Though the word "trial" is not defined either in the Code or in the Act it is dearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by <ORG>. The added reason for specifying <ORG> as special Court is to ensure speed for such trial. "<ORG>" is defined in the Act as "<ORG> specified as <ORG> in Section 14 ", [vide S.2(l)(d)] Thus the <ORG> is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the <ORG> provided that only a Court of session can be specified as <ORG>? Evidently the legislature wanted <ORG> to be <ORG>. Hence the particular <ORG>, even after being specified as <ORG>, would continue to be essentially <ORG> and designation of it as <ORG> would not denude it of its character or even powers as <ORG>. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for "Trial before <ORG>".

Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a magistrate", as provided in the Code , Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that <ORG> can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differnetly <ORG> can take cognizance of any offence directly, without the case being committed to it by a magistrate.

Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that the specified <ORG> (<ORG>) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such <ORG> for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the <ORG> is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the <ORG> from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to <ORG>.

We have noticed from some of the decisions rendered by various High Courts that contentions were advanced based on Sections 4 and 5 of the Code as suggesting that a departure from Section 193 of the Code is permissible under special enactments. Section 4 of the Code contains two sub-sections of which the first sub-section is of no relevance since it deals only with offences under the Indian Penal Code . However, sub-section (2) deals with offences under other laws and hence the same can be looked into. Sub- section (2) of Section 4 is extracted below :

"All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other Jaws shall also be investigated, inquired into, tried and otherwise dealt with under the provision of the Code , This means that if other enactment contains any provision which is contrary to the provisions of the Code , such other functions would apply in place of the particular provision of the Code , If there is no such contrary provision in other laws, then provisions of the code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in paragraph 16 of the decision in <CITATION> .,  2 SCC

500. It reads thus :

" Section 4(2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with accord-ing to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Pro-cedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations."

Nor can Section 5 of the Code be brought in aid for supporting the view that <ORG> specified under the Act can obviate the interdict contained in Section 193 of the Code as long as there is no provision in the Act empowering <ORG> to take cognizance of the offence as a court of original jurisdiction. Section 5 of the Code reads thus :

"5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

This <ORG>, on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, has held that "it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2) ; In short, the provisions of this Code would be applicable to the extent, in the absence of any contrary provision in the special Act or any special provision including the jurisdiction or ap-plicability of the Code ." (vide para 128 in <CITATION> ,  3 SCC 440.

Hence we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge sheet cannot straightway be laid before <ORG> under the Act.

When this question was considered by various <ORG>, the <ORG> of Madhya Pradesh, Allahabad, Patna and Punjab & Haryana have adopted the view consistent with the view which we have stated above. (vide <NAME> v. <NAME>, (1995) Crl. L.J. 2376 MP; <NAME> v. State of U.P., (1995) Crl LJ, 2803 Allahabad; <NAME> v. State of Bihar, (1993) 1 Crimes 643 Patna; <NAME> v. State of Haryana, (1998) 2 Crl. L.R. 73 P.& H. But it seems that the only <ORG> which took a contrary view is the <ORG> of Kerala, At first a Division Bench of that <ORG> took the view that <ORG> can straightway take cognizance of the offence under the Act and proceed with the trial unaffected by Section 193 of the Code. (vide In re: Director General of Prosecution, (1993) Crl. L.J. 760 - (1992) 2 Kerala Law Times 748. One of the Judges of <ORG> sought support to it from the observations of this <ORG> in <NAME> decision (supra) and then observed that "the same principle would apply because of the effect of the transmutation of the Session <ORG> as a Special <ORG>."

When the correctness of the above decision was later doubted by the same <ORG> the question was referred to a larger beach. In <NAME> v. <NAME>, (1996) 1 ALT Crl, 162 = (1995) 1 KLT 23 <NAME> of that <ORG> affirmed the view of <ORG> aforesaid. The Full Bench put forward mainly two reasons for adoptbg the said interpretation. First is that Section 20 of the Act stipulated that provisions of the Act shall have effect notwithstanding anything inconsis-tent therewith contained in any other law for the time being in force. As the section gives overriding effect for the provisions of the Act and it was enacted with a view to prevent commission of offence of atrocities against the member of the Scheduled Castes and Scheduled Tribes, <ORG> felt that "it is rather difficult for us to hold that the committal proceedings is indispensable as a prelude to the case being tried by <ORG>." Second is that, there is nothing in the Act to indicate that <ORG> would get jurisdiction only on a committal order made by the magistrate.

The very approach of <ORG> of <ORG> seems to be that there should be specific indication in the Act that <ORG> gets jurisdiction to try the offence only on a committal order, and in the absence of such specific indication <ORG> must have the right to take cognizance of the offence as though it is a court of original jurisdiction. We have pointed out above that unless there is express provision to the contrary in any other law the interdict contained in Section 193 of the Code cannot be circumvented. Hence the reasoning of <ORG> in <NAME> v. <NAME> (supra) is apparently fallacious.

In fact all the other <ORG> which dealt with this question (the decisions of which were cited supra) have dissented from the aforesaid view of <ORG> of <ORG>, after adverting to the reasons advanced by <ORG>. <ORG> of <ORG> after referring to the Full bench decision in <NAME> v. <NAME> (supra) made the following observations in Referring Officer rep. By State of A.P. v. <NAME>, (1999) 3 ALT 533 = (1999) Crl. L.J 4173 :

"We find it difficult to agree with the reasoning of <ORG> in the two decisions referred to above. As already observed by us, in the absence of a particular procedure prescribed by the said Act as regards the mode of taking cognizance, enquiry or trial, the procedure under the Code will have to be applied by reason of Section 4(2) of the Code as clarified by <ORG> in the case of <ORG> (AIR (1994) SC 1775). There is no provision in the Act which excludes the application of Section 193 , Cr. P.C. The mere fact that no procedure is prescribed or specified under the Special Act does not mean that the Special Act dispenses with the procedure for committal in the Case triable by <ORG> and that <ORG> gets original jurisdiction in the matter of initiations, enquiry or trial. There is no good reason why the procedural provisions of Code relating to power and mode of taking cognizance including Section 193 should not be applied to <ORG>."

We are of the considered opinion that <ORG> of <ORG> has stated the legal position correctly in the above decision.

It must be noted that the observations of this Court in (A.R. Antulay (supra) were made in connection with the establishment of <ORG> under Criminal Amendment Act of 1952. What is to be pointed out is that a Special Judge appointed under the said Act was given the specific power to take cognizance of the offence without the case being committed to him. Hence the observations in <NAME> case cannot be profitably utilized to support the interpretation of another Act wherein there is no such specific provision.

It is contextually relavant to notice that Special Courts created under certain other enactments have been specially empowered to take cog-nizance of the offence without the accused being committed to it for trial, (e.g. Section 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substan-ces Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevntion of Atrocities) Act.

We therefore, hold that the legal postition stated in the decisions of <ORG> in Re Director General prosecutions and <NAME> v. <NAME>, is not in accordance with law. We approve the interpretation adopted by the other <ORG> in the decisions referred to above as the correct legal position.

So <ORG> has rightly set aside, as per the impugned order, the proceedings initiated by the special <ORG> Specified under the Act. But we do not support the directions given by the learned Single Judge in his order that after committal of the case the special <ORG> shall frame charge against the appellants. It is for the Special <ORG> to decide regarding the action to be taken next, after hearing both sides as provided in Section 227 of the Code. No direction can be given to the Special <ORG> at this premature stage as to what the court should adopt then. It is open to the appellants to raise all their contentions at that stage if they wish to make a plea for discharge. We make it clear that if any such plea is made the Judge of the Special <ORG> shall pass appropriate orders untrammeled by the observations made in the impugned order.

With the said directions and observations we disposed of this appeal.


PETITIONER: <NAME> Vs. RESPONDENT: THE COMMISSIONER OF GIFT TAX, DATE OF JUDGMENT: 17/08/2000 BENCH: S.P. Bhuracha , <NAME> , & <NAME> JUDGMENT:

<NAME>

L...I...T.......T.......T.......T.......T.......T.......T..J This appeal is by the assessee against the judgment and order dated 25.4.1988 passed by <ORG> of <ORG>. It relates to the assessment year 1972- 73.

<ORG>, Hyderabad (for short the `Tribunal' ) had referred the following question under 26(1) of the Gift-tax Act , 1958 (for short the `Act') for the opinion of <ORG> :-

"Whether on the facts and in the circumstances of the case, the <ORG> was right in holding that the release by the assessee who was one of the partners in the firm of <ORG>, of his rights in the assets of the firm for a consideration of Rs. 3,00,000/- when the market value of the assets of the firm in proportion to his share was in excess thereof, did not amount to a gift within the meaning of the Gift-tax Act ."

<ORG> by the impugned judgment answered the said question in negative and against the assessee.

Briefly stated, the facts leading to the filing of this appeal are as follows.

The appellant and his brother <NAME> were the partners of a partnership firm constituted on 9.1.1965 under the name and style of "<ORG>". The firm was engaged in the business of a restaurant in a building known as "Mohsin-ul-Mulk Kothi" situated at Abid Road, Hyderabad.

An agreement was entered into between the appellant and his brother <NAME> on 15.4.1971. The terms of the said agreement are set out below: -

"(i) Sri Jagatram (assessee) is to retire before December 31,1971.

(ii) Steps are to be taken to finalise accounts relating to the partnership and determination of the amount due to Sri <NAME> on retirement.

(iii)Sri <ORG> agreed to pay a sum of Rs. 1,50,000 to <ORG> towards the value of 50% share of the goodwill of the firm.

(iv) The above sum of Rs. 1,50,000 payable by Sri Bishanlal to Sri <NAME> shall be in addition to the sum due to Sri <NAME> from the partnership at the time of retirement.

(v) If the total sum including 50% share value of the goodwill, i.e., Rs. 1,50,000/-, payable to Sri <NAME> falls below Rs. 3,00,000, the amount in excess of the balance actually due to Sri <NAME> at the time of retirement shall be treated as the sale value of 50% share of the goodwill belonging to Sri <NAME>.

(vi) Sri <NAME> shall execute proper conveyance in favour of <NAME> conveying 50% share in the land and building in which the business of 3-Aces is carried on.

(vii)It is open to Sri Bishanlal to classify the sum payable to Sri <NAME> as between movable and immovable properties and get necessary documents executed by Sri <NAME>."

Pursuant to the said agreement, a Deed of Dissolution of the partnership was executed on 22.11.1971 w.e.f. that date. The relevant terms contained in the Deed of Dissolution are given below:-

"(i) All the assets and liabilities of the partnership including the land and building are taken by Sri Bishanlal from November 22, 1971.

(ii) Sri <NAME> renounced his interest, share and interest in the said assets and liabilities from November 22, 1971.

(iii)In full settlement and satisfaction of the share, right and interest of Sri <NAME> in the partnership including land and buildings, profits and goodwill and the amounts standing to the credit of Sri <NAME> in the partnership accounts as on November 21, 1971, Sri <NAME> has agreed to receive Rs. 3,00,000.

(iv) Out of the said Rs. 3,00,000, Rs. 1,00,000 has already been paid. The balance of Rs. 2,00,000 is payable by <ORG> against the sale consideration of the undivided 50% share in the land and building known as "Mohsin-ul-Mulk Kothi".

(v) Sri <NAME> should immediately execute a sale deed and register the same in favour of Sri <NAME> conveying his 50% share in the land and building for Rs. 2,00,000."

It was on 10.3.1972 that the appellant and <NAME> executed a document styled as `Release Deed' pursuant to and consistent with the aforementioned two documents.

Originally assessment of gift tax was made on 12.2.1972 on a total gift of Rs. 70,000/. After allowing exemption of Rs. 5,000/- it was determined at Rs. 65,000/-. Subsequently, the Gift Tax Officer took up the proceedings under Section 16 of the Act, 1958 by re-opening the assessment already made. He valued the share of the appellant in the partnership assets at Rs. 12,67,015/-. An amount of Rs. 3,00,000/- paid by <NAME> to the appellant was deducted and thus the value of the property alleged to have been gifted by the appellant to his brother <NAME> was arrived at Rs. 9,67,015/-. On appeal by the appellant, the Commissioner of Gift-tax (Appeals) confirmed the order of the Gift-tax Officer. However, he reduced the total value of the gift by Rs.3,77,000/-. The appellant took up the matter in further appeal before the <ORG>. The <ORG> accepted the appeal holding that the distribution of assets between partners on the dissolution of the firm, even though unequal, does not amount to "transfer of property" within the meaning of Section 2(xxiv) and therefore, did not amount to "gift" as defined in Section 2(xii) of the Act.

At the instance of the <ORG>, the <ORG> referred the above stated question under Section 26(1) of the Act for the opinion of <ORG>. <ORG> referring to the various decisions and for the reasons stated in the impugned judgment took the view in favour of the <ORG>.

In doing so, <ORG> relied on <ORG> vs. <NAME> [1987]166 ITR 124(SC), <NAME> vs. <ORG> [1985] 153 ITR 481 (Mad) and <ORG> vs. <NAME> [ 1982] 133 ITR 317 (Bom.) distinguishing the other cases, particularly the case of <ORG> vs. <NAME> [ 1971] 82 ITR 599(SC) strongly relied on in support of the case of the appellant.

At the outset, the learned counsel for the appellant submitted that the appellant is not challenging the valuation of property of alleged gift. Hence, it is unnecessary for us to go into that question. The learned counsel for the appellant seriously contended that <ORG> manifestly erred in answering the question in favour of the <ORG> contrary to the ratio and principles stated in the case of <NAME> (supra). He further submitted that the decisions relied on by <ORG> in support of its conclusion were not directly on the point and some of them arose under the Estate Duty Act .

Per contra, the learned senior counsel for the respondent argued supporting the view taken by <ORG>.

We have carefully considered the submissions made by the learned counsel for the parties. In order to appreciate the respective contentions of the parties and to resolve the controversy we consider it appropriate to extract definitions of "Gift" and "Transfer of property" from Section 2 of the Act: -

"2 (xii) "gift" means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer or conversion of any property referred to in section 4 , deemed to be a gift under that section;

Explanation. -- A transfer of any building or part thereof referred to in clause (iii), clause (iiia) or clause (iiib) of section 27 of the Income-tax Act, by the person who is deemed under the said clause to be the owner thereof made voluntarily and without consideration in money or money's worth, shall be deemed to be a gift made by such person."

"2 (xxiv) "transfer of property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes --

(a) the creation of a trust in property;

(b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property;

(c) the exercise of a power of appointment (whether general, special or subject to any restrictions as to the persons in whose favour the appointment may be made) of property vested in any person; not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and

(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person;"

This Court in <CITATION>  82 ITR 599 SC ], arising under the Act itself construing and considering the very same provisions held that in a Hindu Joint Family by allotting greater share to other members of coparcenary than that to which they were entitled, the assessee could not be held to have made a gift. Facts of the case were that the assessee was the <NAME> of <ORG> consisting of himself, his son and his six grandsons. There was a partition in the family property. The total value of the properties divided was Rs.8,51,440/- but the assessee, the <NAME> took properties worth only Rs.1,78,343/- allotting the remaining properties to other coparceners. After considering various decisions and provisions of law, this Court arrived at the following conclusions:-

i) That the partition did not effect any transfer as generally understood in law and did not, therefore, fall within the definition of gift in Section 2(xii) of the Act.

ii) That the partition in the family could not be considered to be a disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property within the meaning of those words in Section 2(xxiv) of the Act. iii) That the partition was not a transaction entered into by the assessee with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person and, therefore, Section 2(xxiv)(d) did not apply. (iv) That, therefore, there was no gift by the assessee of which he was liable to pay gift tax. On the reason that a member of Hindu Undivided Family has no definite share in the family property before the division and he cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he would have gone to a court to enforce his claim.

The word 'transaction' in clause (d) of Section 2(xxiv) takes its colour from the main clause; it must be a transfer of property in some way. The words disposition, conveyance, assignment, settlement, delivery and payment are all used to indicate some kind of transfer of property. An interpretation clause which extends the meaning of a word does not take away its ordinary and popular meaning.

It is settled position in law that a partition of Hindu Undivided Family cannot be considered as a transfer in the strict sense. <CITATION> [(1965) 2 SCR 100 = 55 ITR 637] this Court stated thus: -

"But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not. This was so held in <CITATION> 1951 Mad. 607]. <NAME> (then a judge of <ORG>), after examining several authorities, came to the conclusion that 'partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary.' <ORG> again examined the question in <CITATION> [41 ITR 297 (Mad.)], with reference to section 16(3)(a)(iv) . It observed that 'obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common'."

This <ORG> in <NAME> case aforementioned has stated thus: -

"A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment", "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of one's property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a Hindu Undivided Family can be considered either as "disposition" or "conveyance" or "assignment" or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in s. 2 (xxiv).

This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person. A member of <ORG> who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of s. 2 (xxiv) takes its colour from the main clause viz., it must be a transfer of property in some way. This conclusion of ours gets support from sub-clause (a) to

(c) of clause (xxiv) of s. 2 , each of which deals with one or the other mode of transfer. If <ORG> intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say so. In interpreting tax laws, courts merely look at the words of the section. If a case clearly comes within the section, the subject is taxed and not otherwise."

This Court again in <CITATION> [AIR 1966 SC 1300], considering the provisions of Sections 14 , 15 , 29 , 32 , 37 , 38 and 48 of Partnership Act, 1932 has explained as to the nature of property during subsistence of partnership and after its dissolution. It is held that "from a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners, when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realization of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time, and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in <ORG>.

(a) and sub-Cls. (i), (ii) and (iii) of Cl. (b) of S.48."

<CITATION>  120 ITR 49 SC] this Court considered few provisions of Income-tax Act , 1961. Referring to the case of <NAME> and other cases expressed the view that a partnership firm under the Indian Partnership Act is not a distinct legal entity apart from the partners constituting it and that in law the firm as such has no separate rights of its own. When one talks of the property or assets of the firm all that is meant is property or assets in which all partners have a joint or common interest. Hence the contention that upon dissolution of the firm rights in the partnership assets are extinguished, cannot be accepted. It is further, held that the partners own jointly or in common the assets of the partnership and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and there is no question of any extinguishment of the firm's rights in the partnership assets amounting to a transfer of assets within the meaning of Section 2(47) of the Income-tax Act, 1961. Although the case arose under the provisions of Income-tax Act , but as to the nature and character of transaction of mutual adjustment of rights between the partners upon dissolution of a firm, it was clearly held that such a transaction did not amount to transfer. If there is a sale or transfer of assets by the assessee to a person, the position would be different. Since a partner in a firm has no exclusive right on any property of the firm he cannot transfer the property. But upon the dissolution of a firm allotment or adjustment of the assets takes place. Hence there was no element of transfer in such a case.

Yet, in another case <CITATION>  68 ITR 240 SC], dealing with the provisions of Section 10(2)(vii) of Income-tax Act again referring to <NAME> case this Court took the view that a partner might in an action for dissolution insist to sell the assets of partnership to realize his share. But where in satisfaction of the claim of a partner to his share in the value of the residue determined on the footing of an actual or notional sale, the properties so allotted cannot be taken to have been sold to him.

On principles and in view of the clear ratio, the decision of <NAME> (supra) of this Court supported the case of the appellant which decision was rightly applied by the <ORG> to the facts of the case. <ORG> in relation to the said decision has stated thus :-

"Be that as it may, it is not for us to express any opinion on the said criticism. By virtue of Article 141 of the Constitution, the said decision and even the observations aforesaid are binding upon us. In our opinion, however, the ratio of the said decision has no application to the distribution of assets as between partners whose shares inter se are specific and determined at any given point of time. Moreover, this decision has to be read and understood in the light of the subsequent decision of <ORG> in CED vs. <NAME>  105 ITR 92, which is, no doubt, a case arising under the Estate Duty Act . Section 2(15) of the Estate Duty Act defines "property" in the following terms."

<ORG> having rightly stated that the said decision and even the observations made were binding on it wrongly did not apply the ratio of the said decision to the facts of the case in hand. Further <ORG> committed an error in stating that the said decision had no application to the distribution of the assets as between the partners whose shares inter-se are specific and determined at any given point of time and that the said decision had to be read and understood in the light of the subsequent decision of this Court in <NAME> case. As in the case of <ORG>, the coparceners do not have exclusive rights on any specific property of the family, the property allotted to their shares become specified only on partition; the same is the position in the case of partner of a firm. No partner of a firm can claim exclusive or specific right in any specific asset of the property of a firm. <ORG> also have definite share in <ORG>. So also the partners have definite share in the partnership. In our considered view, the principles stated in <NAME> case equally apply to case of allotment or adjustment of properties among the partners upon dissolution of a firm. We fail to understand how <NAME> case made any difference. The said case did not show any disagreement with the principles stated in <NAME> case and no distinction was made to take a different view. On the other hand, principles stated in <NAME> case were affirmed. In relation to <NAME> case, in <NAME>, it is stated thus:-

"That a case under the Gift-tax Act , 1958, and the construction of section 2(xxiv) fell for decision. Certainly, many of the observations there, read de hors the particular statute, might reinforce the assessee's stand. This court interpreted the expression "transfer of property" in section 2(xxiv) and held that the expression "disposition" used in that provision should be read in the context and setting of the given statute. The very fact that "disposition" is treated as a mode of transfer takes the legal concept along a different street, if one may use such a phrase, from the one along which that word in the Estate Duty Act is traveling. Mr. Justice <NAME> rightly observed, if we may say so with respect, that:

"Words in the section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve." (pp.605-606).

The word" transaction" in section 2(24) of the Gift-tax Act takes its colour from the main clause, that is, it must be a "transfer" of property in some way. Since a partition is not a "transfer" in the ordinary sense of law, the court reached the conclusion that a mere partition with unequal allotments not being a transfer, cannot be covered by section 2(xxiv) . A close reading of that provision and the judgment will dissolve the mist of misunderstanding and discloses the danger of reading observations from that case for application in the instant case. The language of section 2(15) , Explanation 2, is different and wider and the reasoning of <NAME> cannot therefore, control its amplitude. It is perfectly true that in ordinary Hindu law a partition involves no conveyance and no question o transfer arises when all that happens is a severance in status and the common holding of property by the coparcener is converted into separate title of each coparcener as tenant-in-common. Nor does subsequent partition by metes and bounds amount to a transfer. The controlling distinction consists in the difference in definition between the Gift-tax Act ( section 2(xxiv) and the Estate Duty Act ( section 2(15) ."

We find that <NAME> case supports the view taken in <NAME> case. Added to this, Section 2(15) of the Estate Duty Act, defining "property" came up for consideration in <NAME> case. We may state here itself that the words and expressions defined in one statute as judicially interpreted do not afford a guide to construction of the same words or expressions in another statute unless both the statutes are para-materia legislations or it is specifically so provided in one statute to give the same meaning to the words as defined in other statute. The aim and object of the two legislations, namely, the Gift-tax Act and the Estate Duty Act are not similar.

<CITATION>  79 ITR 594 (SC), it is clearly stated that where in the course of dissolution, the assets of the firm are divided between the partners according to the respective shares, by allotting the individual assets or paying the money value equivalent thereof, no transfer is involved and that it is merely a case of distribution of assets.

The same view is taken in Addl. <CITATION>  165 ITR 166 (SC) that where a partner retires from a firm and receives his share of amount calculated on the valuation of the net partnership assets including goodwill of the firm, no transfer is involved.

We now refer to the cases relied on by <ORG> to support its view. In CGT vs. <NAME> [1974] 97 ITR 393 (Guj), this Court reversed the decision of Gujarat <ORG> and in the light of the facts and circumstances of the case, held that there was a gift for the purpose of the Gift-tax Act . In that case, a firm by name M/s. <NAME> came into existence with three partners namely, <NAME>, <ORG> and <ORG> with 7 annas, 4 annas and 5 annas shares respectively. During the assessment year 1963-64, under the new deed, <ORG> retired. The share of <ORG> remained unchanged. One <ORG> became a partner with 4 annas share. The share of assessee <NAME> was reduced to 4 annas. For the remaining 4 annas share, 2 minor sons of <NAME> were admitted to the benefits of the firm with 12% and 13% interest respectively. There was also no change in the share capital standing in the name of the assessee. As can be seen from the facts stated above, <ORG> retired and the firm was reconstituted; two minor sons of <NAME>, one of the partners were admitted to the benefits of the partnership and simultaneously share of said <NAME> was reduced from 7 annas to 4 annas giving 3 annas share to the minor sons. In this situation when at the time of the reconstitution of the firm, a 3 annas share out of <NAME>'s 7 annas share in the partnership firm was given to his minor sons it was taken as transfer of property by way of gift and as such it was taxable. Hence the case of <NAME> did not advance the case of the <ORG> on the facts of the case before us.

The case of <NAME> was also a case where the assessee's share was reduced and his minor children were admitted to the benefits of the partnership with 8% share in the profits and this case was referred to and approved by this Court in <NAME> case. The case of <NAME> is again a case where in the constitution of a firm, minors were admitted to the benefits of the partnership firm. In all these cases, minors were admitted to the benefits of the partnership and if such partner or minor did not bring in capital of his own into the partnership firm corresponding to his share, it was held that the transaction amounted to a gift. But the present case stands entirely on a different footing. It is clearly and merely a case of adjustment or distribution of assets of the firm in regard to share of the appellant on its dissolution and as such no transfer of property was involved in it.

Thus, in our view, the High court was not right in applying the decisions in (1) <NAME> (2) M.K. Kuppuraj, (3) Premji Trikamji to the facts of the case in hand.

The cases of this Court in (1) <NAME>, ( 2) <ORG>, (3) <ORG>, (4) <NAME> and (5) <NAME> aforementioned fully support the appellant on facts and in the circumstances of the case.

Having regard to all aspects and for the reasons stated above, we conclude that <ORG> committed an error in answering the question in negative i.e. in favour of the <ORG> and against the assessee-appellant. Hence this appeal is entitled to succeed. The judgment and order of <ORG> reported in [1988] 172 ITR 632 (AP) are set aside, upholding the order of the <ORG>. The question aforementioned is answered in the affirmative i.e. against the <ORG> and in favour of the assessee-appellant. The appeal is ordered accordingly. No costs.


PETITIONER: UNION OF INDIA Vs. RESPONDENT: COL. J. N. SINHA AND ANR. DATE OF JUDGMENT: 12/08/1970 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. SHAH, J.C. CITATION: 1971 AIR 40 1971 SCR (1) 791 1969 SCC (2) 662 CITATOR INFO : R 1972 SC2185 (12) F 1973 SC 698 (11) R 1973 SC1252 (14) RF 1975 SC2057 (8) RF 1976 SC2433 (7) R 1976 SC2581 (18) F 1977 SC 854 (9) R 1978 SC 597 (218) R 1978 SC 851 (65,66) R 1980 SC 563 (16,18,21,22,25,27,31) R 1981 SC 594 (5) RF 1981 SC 818 (22,29) R 1984 SC 630 (4) R 1985 SC1416 (99) RF 1986 SC 555 (6) R 1987 SC 65 (2) RF 1987 SC 593 (23) RF 1987 SC1933 (10) R 1989 SC2218 (5) RF 1990 SC1004 (8) R 1990 SC1368 (22) RF 1991 SC 101 (22,152,261) RF 1991 SC 564 (6) R 1992 SC1020 (12,16,17,23,24,25,29,31) ACT: Constitution of India 1950, Arts. 309, 310-Rules made under Art.309- Pleasure doctrine embodied in Art. 310- Fundamental Rule 56(j) embodies pleasure doctrine-Compulsory refirement at age of 50 after a certain number of years of service does not have civil consequences Rules of natural justice cannot be invoked in such case-Rules of natural justice operate only in areas not covered by law validly made. HEADNOTE: The first respondent joined the post of Extra Assistant Superintendent in <ORG> in 1938. Later he was taken into the Class I Service of <ORG> and rose to the post of Deputy Director. He also officiated as -Director. On August 13, 1969 the President of India pleased by an order under Rule 56(j) of the Funda- mental Rules to compulsorily retire the first respondent from Government service. No reasons were given in the order. The appellant challenged the order by a writ petition in <ORG>. The failure on the part of the concerned authority to give opportunity to the first respondent to show cause against his compulsory retirement was held by <ORG> to have amounted to a contravention of the principles of natural justice. Against the judgment of <ORG> <ORG> appealed. HELD : Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in <NAME>'s case these rules can operate only in areas not covered by any law validly made. If a statutory provision can be read consistently with the principles of natural justice, the <ORG> should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But on the other hand a statutory provision either specifically 'or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the power. [794 G-795 C] Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory requirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The respondent had not challenged the impugned order on any of these grounds. [795 D-F] Compulsory retirement does not involve any civil consequence. A person retired under Rule 56(i) does not lose any of the rights acquired 792 by him before retirement. The rule is not intended for taking any penal action against government servants. It merely embodies one of the facets of the pleasure doctrine embodied in Art. 310 of the Constitution. The rule holds the balance between the, rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Three months notice is provided to enable the retired employee to find out other suitable employment. [795 G-796 B] On the above view of the law, namely, that no notice to show-cause was required, the appeal must be allowed. <CITATION> , A.I.R. 1965 S.C. 280. <CITATION> , A.I.R. 1970, S.C. 150, <CITATION> .,  2 S.C.R. 625 distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 381 of 1970. Appeal-from the judgment and order dated December 22, 1969 of <ORG> in Civil Writ No. 746 of 1969. <NAME>, Attorney-General and <NAME>, for the appellant.

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

<NAME>, for respondent No. 2.

The Judgment of the Court was delivered by. <NAME>, J. 'In this appeal by certificate the only question that was canvassed before us was as regards the validity of the order contained in memorandum No. F. 16-42/68-S-1, dated August 13, 1969 issued by the Government of India, <ORG>, retiring the 1st respondent compulsorily from government service in exercise of the powers conferred under cl. (j) -of Fundamental Rule 56 with effect from August 14 1969. That order was attacked before <ORG> on various grounds. <ORG> rejected some of those grounds. It did not find it necessary to decide ' a few others but accepting the contention of the respondent that in making the order, the appellant -had violated the principles of natural justice, it held that the impugned order is invalid <ORG> accordingly issued a writ of certiorari quashing that order.

Before us the only contention presented for -our decision was whether <ORG> was right in holding that in making the impugned order the appellant had violated the principles of natural justice. No other contention was taken before us. Hence we shall address ourselves only to that question.

Before proceeding to examine the contention above-formulated it is necessary to set out the material facts. The 1st respondent. herein Col. <NAME> successfully competed in the examination held by <ORG> in 1938 for the post of Extra-Assistant Superintendent in <ORG>. After selection, he was appointed as an Extra-Assistant Superintendent. He worked as probationer for a period of three years and thereafter he was confirmed in that post in 1941. During the second world war, he Volunteered for active-service in the army and was granted an emergency Commission in the army. He was granted a regular commission in the army with effect from October 23, 1942.

In exercise of the powers conferred by the proviso to Art. 309 of the Constitution, the President of India made on August 17, 1950 rules called the Survey of India (Recruitment from Corps of Engineering Officers) Rules, 1950 for regulating the recruitment and conditions of service of persons appointed from <ORG> of <ORG> to <ORG> Rule 2 of the said Rules provides for the recruitment of Military Officers to <ORG> and Rule 3 provides that the recruited officers will be on probation for two years which may be extended by the <ORG> on the advice of the Surveyor General. The 1st respondent was taken into <ORG> under Rule 2 of the aforesaid 1950 Rules as Deputy Superintendent Surveyor with effect from June 1951. Thereafter the President of India in .exercise of the powers under the proviso to Art. 309 , made on July 1, 1960 the Survey of India Class I (Recruitment) Rules, 1960 for regulating the recruitment of <ORG>. The 1st respondent was subsequently promoted firstly as Superintending Surveyor and then as Deputy Director. After sometime he was promoted as Director and lastly as Director (Selection Grade). The last mentioned promotion was made with effect from October 27, 1966. On May 17, 1969, Fundamental Rule 56(j) was amended. Thereafter on August 13, 1969, <ORG> issued the impugned order. The 1st respondent was given three months pay and allowances in lieu of three months notice prescribed in Fundamental Rule 56(1). The 1st respondent being aggrieved by that order, challenged the validity of the same. As mentioned earlier, <ORG> accepted his plea. <ORG> has appealed against that order.

Fundamental Rule 56(j) reads "Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice

(i) if he is in Class I or Class II Service or post the age limit for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years.

(ii) In any other case after he has attained the age of 5 5 years.

Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966 and to a Government servant referred to in clause (f ) ."

The order impugned merely says that in pursuance of cl. 5 6 ,the President was, pleased to decide that in public interest the 1st respondent should retire from government service with effect from August 13, 1969 and that he would be given three months pay and allowances in lieu of three months notice provided in the said rule. No reasons are given for compulsorily retiring the 1st respondent. Admittedly no opportunity was given to him to show cause against his compulsory retirement. The failure on' the part of the concerned authority to give an opportunity to the 1st respondent to show cause against his compulsory retirement was held by <ORG> to have amounted to a contravention of the principles of natural justice. The validity of Fundamental Rule 56(j) was not questioned before <ORG> nor before us. Its validity is not open to question in view of the decision of this <ORG> in <CITATION> (1). Fundamental Rule 56(j) in terms does not require that any

-opportunity should be given to the, concerned government servant 'to show cause against his compulsory retirement. A government -servant serving under <ORG> holds his office at the pleasure of the President as provided in Art. 310 of the Constitution. But this "Pleasure" doctrine is subject to the rules or law -made under Art. 309 as well as to the conditions prescribed under Art. 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in <CITATION> (2) "the aim of rules of natural justice is to secure justice or to put it negatively to -prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It (1) A. I. R. 1965 S. C. 280 (2) A. I. R. 1970 , S. C. 150.

is true that if a statutory provision can be read consistently with the principles of natural justice. the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of naural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred / and the effect of the exercise of that power. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. <ORG> did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 3 1 0 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.

It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.

In our opinion <ORG> erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the government servant because of his past service. It cannot be said that if the retiring age of all or a section of the government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all government servants. The retirement age is fixed not merely on the basis of the interest of the government servant but also depending on the requirements of the society. <ORG> was not justified in seeking support for its conclusion from the decision of this <ORG> in <CITATION> and ors.(1) and <CITATION> (').

In <NAME> case(') Dr. <NAME> date of birth was refixed by the government without giving her proper opportunity to show that the enquiry officer's report was not correct. It is under those circumstances this Court held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justice. Therein the impugned order took away some of the existing rights of the petitioner.

In <NAME>'s case('), a committee consisting of Chief Conservator of, Forest, Kashmir and others was appointed to recommend names of the officers from <ORG> for (1) [1967] 2 S. C. R. 625.

(2) A.I.R. 1970 S.C. 150.

being selected for the Indian, <ORG>. The Chief Conservator of Forests, Kashmir was one of the candidates for selection. Further it was established therein that some of the officers who competed with him had earlier challenged his seniority and consequently his right to be the Chief Conservator and that dispute was pending. Under those circumstances this Court held that there -was contravention of the principles of natural justice.

For the reasons mentioned above, we are unable to agree with the conclusion reached by <ORG> that the impugned order is invalid. We accordingly allow this appeal, set aside the judgment and decree of <ORG> and dismiss the writ petition. In the circumstances of the case we make no order as to costs.

[The <ORG> by order dated November 18, 1970 and January 19, 1971 on an application for review filed by the respondent vacated its order dismissing the writ petition. Instead, the proceedings were remanded to the High <ORG> for decision on such points as were not, dealt with and decided in the judgment of that court. Ed.] G.C. Appeal allowed. Proceedings remanded.


JUDGMENT <NAME>, C.J.

1. This is a petition under Article 226 of the Constitution by the defendants in a suit for partition of agricultural lands and some other reliefs against the judgment of <ORG>.

2. The agricultural lands were owned by one <NAME> the common ancestor of the plaintiffs and the defendants. <NAME> had 5 sons Onkarlal, <NAME>, <NAME>, <NAME> and <NAME>. The branches of <NAME> and <NAME> have admittedly become extinct. <NAME> had two sons <NAME> and <NAME>. The plaintiffs are the sons of <NAME>. Defendants Nos. 1 and 2 are the sons of <NAME>. Defendants Nos. 9 and 6 are sons of Defendant No. 2. Defendant No. 7 is the son of Defendant No. 9. Defendant No. 3 is the son of <NAME> and Defendant No. 8 is the son of Defendant No. 3. The plaintiffs alleged in the alternative that <NAME> was adopted by <NAME>'s widow <NAME>. If the adoption is proved the share of the plaintiffs would be one-third in the property in suit. If it is not proved then their share would be one-fourth.

3. The suit was resisted inter alia on the ground that <NAME> had renounced his share in the coparcenary property and his sons consequently could claim no share in it. This ground prevailed with the Assistant Collector and <ORG> and they dismissed the suit of the plaintiffs altogether. <ORG> however held that the renunciation of his share by <NAME> did not deprive his sons <NAME> and <NAME> of a share in the joint family property as they continued to remain coparceners. On this finding <ORG> remanded the suit for disposal in accordance with law to the Court or the Assistant Collector.

4. The finding of <ORG> has been challenged before us. Having heard the learned counsel for the parties we are of the opinion that the finding is correct. Article 264 of Mulla's Hindu Law. Thirteenth Edition, runs as follows:--

"Renunciation by coparcener of his share.-- A coparcener may renounce his interest in the coparcenery property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. Reference may be made to Article 328(6)."

Article 328(6) referred to in the above article is is the following words:--

"A renunciation by a member of his interest in the family property stands on a different footing altogether from the case where one member receives his share in the property and separates from the other members. In the former case, the other members continue joint as before. The effect of renunciation is to reduce the number of persons to whom shares would be allotted if and when a division of the estate takes place."

In the present case <NAME> did not separate from the joint family at the time of his renunciation. He continued to be a member of it. The result was that although he renounced his share he did not deprive his sons of a share in the joint family property. Even his after-born sons were members of the coparcenery and are entitled to claim a share out of the ancestral joint family property.

5. In <NAME>'s Introduction to Modern Hindu Law, 1963 Edition, the law is stated in Article 537 at page 330 in the following words:--

"When a partition is contemplated a participant, whilst accepting his separation from the others, may renounce his share, thereby extinguishing his interest in the property under partition. He may renounce only his own share. In such cases the shares of the remaining coparceners will certainly be increased. If a father renounces and then, even after partition, a son is conceived to him, the son is entitled to call upon his brothers for a share notwithstanding his father's ill-considered renunciation. Renunciation is not a contractual act, but a step in the nature of self-effacement. It may either operate to separate the renouncing member (as we have seen) or it may operate merely to renounce a share at a particular partition, reserving to him the right to remain joint in all other respects. If such a member wishes to forgo a share on a subsequent partition between himself and other members of the joint family who did not participate at the previous partition (for example, if they were not then born), he must renounce once again."

We are accordingly of the opinion that the decision of <ORG> is correct and dismiss the writ petition with costs.