JUDGMENT Gajendragadkar, C.J.

1. This appeal has been brought to this Court by the appellant, Dr. <NAME>, on a certificate granted to him by <ORG>. It arises from an election petition filed by him on April 10, 1962 before <ORG> (II), Chandigarh (No. 99 of 19,62) against the five respondents. These respondents are: <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, respectively. The appellant contested the election to <ORG> from the Dasuya Constituency at the last General Election in the beginning of 1962. The result of this election was declared on February 25, 1962 when respondent No. 1, <NAME>, was declared to have been duly elected. The appellant and respondent No. 1 had secured 22,406 and 22,803 votes, respectively' and so, it is clear that respondent No. 1 had a very narrow margin over the appellant. The other respondents appeared to have played no significant part in the election, because the votes they secured were 948, 682, 240 and 756, respectively. After the result of the election was announced, the appellant filed an election petition under the relevant provisions of the Representation of the People Act , 1951 (No. 43 of 1951) (hereinafter called "the Act"). By his petition, the appellant claimed a declaration that the election of respondent No. 1 was void and that he had in fact been duly elected at the said election. The proceedings before the <ORG> were lengthy and protracted and the dispute between the parties appears to have been fought with great bitterness and heat. The appellant made several allegations against respondent No. 1 and urged on the strength of the said allegations that his election was void. One of the prayers made by the appellant in his election petition was that for the reasons which he had indicated therein, he was entitled to have an inspection of the ballot boxes and a recount made of the votes cast in favour of the respective parties. The <ORG> upheld his plea and allowed inspection of the ballot boxes. As a result of the recount made by the <ORG>, the <ORG> came to the conclusion that the appellant be declared to have been elected at the said election.

2. At the trial, the <ORG> initially raised 14 issues; some of them were in the nature of preliminary issues, while others had reference to the merits of the controversy between the parties. On the 24th August 1962, on a request made by respondent No. 1, two more issues were added, and that made the number of issues 16. Thereafter, on the 3rd September 1962, the <ORG> added three more issues. In consequence, 19 issues came to be tried by the <ORG>.

3. The decision of the <ORG> which was in favour of the appellant, however, rested on three findings. It held that respondent No. 1 had committed the corrupt practice of bribery by offering and giving Rs. 1,000 to <NAME> with the object of inducing him to withdraw from being a candidate at the election, and by offering and giving Rs. 2,000 at Safdarpore to <NAME> and others with the object of inducing the electors in that village to vote for him at the election. These two findings would show that respondent No. 1 had committed corrupt practices as defined by Section 123(1)(A)(a) and (b) of the Act. The <ORG> further found that the result of the election in so far as it concerned the returned candidate had been materially affected by the improper reception of votes in his favour which were void and by the improper rejection of valid votes polled in favour of the appellant. On a proper re-counting, the <ORG>, came to the conclusion that respondent No. 1 had received 22,412 votes, and the appellant was found to have received 22,491 votes. This conclusion of the <ORG> was recorded under Section 100(1)(d)(iv) of the Act. In the result, the <ORG> allowed the election petition, declared the election of respondent No. 1 to be void, and gave the appellant a declaration that he had been duly elected to <ORG> from the Dasuya Constituency of Hoshiarpur District. This decision of the <ORG> was pronounced on the 7th April 1964.

4. Against this decision, respondent No. 1 preferred an appeal before <ORG>. Before <ORG> respondent No. 1 challenged the correctness of the findings which had been recorded against him by the <ORG>. The appellant supported the said findings and also attempted to support the final conclusion of the <ORG> on the additional ground that the <ORG> was in error in recording findings against him on two issues. These two issues arose from the case made out by the appellant that respondent No. 1 had, in the course of his election, exceeded the amount of Rupees 7,000 which is the permissible expenditure under the law. According to the appellant, respondent No. 1 had in fact spent Rs. 16,340. The <ORG> had rejected this case, and the appellant urged before <ORG> that the decision of the <ORG> on this issue was wrong. Similarly, the appellant had urged before the <ORG> that respondent No. 1 had paid by way of bribe Rs. 1,000 to <NAME>, respondent No. 3 who was a contesting candidate at the election; and the <ORG> has found that this story had not been satisfactorily proved. The appellant argued before <ORG> that even this finding was wrong.

5. That is how <ORG> was called upon to consider the correctness of the findings recorded by the <ORG> against respondent No. 1, and also to consider whether the appellant was right in contending that the findings recorded by the <ORG> in favour of respondent No. 1 on two issues were justified. The two learned Judges of <ORG> who heard this appeal have delivered separate, but concurring, judgments dealing with the points which had been conveniently divided between them for elaborate treatment and discussion. In the result, <ORG> has held that the findings recorded by the <ORG> on two issues in favour of respondent No. 1 were justified, whereas the findings recorded by it in favour of the appellant arid against respondent No. 1 were not justified. The" appeal preferred by respondent No. 1 was accordingly allowed, and the election petition filed by the appellant was ordered to be dismissed.

6. As we have already indicated, the contest between the parties in the present proceedings has been very bitter, and elaborate evidence has been led by both of them in regard to the several issues which arose for decision. The paper-books which have been prepared in this appeal for our use extend over nearly 1,700 printed pages, the judgment of the <ORG> spreads over 172 pages, whereas the two judgments delivered by the learned Judges of <ORG> occupy about 100 pages. Even so, as often happens, the controversy between the parties before this Court has been limited to a few points which can be legitimately raised under Article 136 of (he Constitution.

7. It is relevant at the outset to indicate briefly the approach which this Court generally adopts in dealing with election appeals brought before it under Article 136. It is well settled that the jurisdiction of <ORG> in dealing with an election appeal under Section 116-A of the Act is very wide. It is open to <ORG> to re-appreciate the evidence and consider the propriety, correctness or legality of the findings recorded by the <ORG> in its order under appeal. Naturally, as <ORG>, <ORG> would not interfere with the findings of the fact recorded by the <ORG> which are based merely on appreciation of oral evidence. But that is not to say that <ORG> cannot so interfere if it comes to the conclusion that the impugned finding is erroneous and deserves to be reversed. When the matter comes to this Court under Article 136 against the appellate decision of <ORG>, this Court generally does not interfere with question of fact. Ordinarily, the findings of fact recorded by <ORG> in dealing with an appeal under Section 116-A of the Act are not disturbed, unless there are strong and compelling reasons to do so. The position becomes still more difficult for the appellant where the findings of fact recorded by <ORG> happen to confirm similar findings recorded by the <ORG>. That is why the limits of the controversy in election appeals brought to this Court under Article 136 naturally become very narrow.

8. In the present case on two points <ORG> and the <ORG> have made concurrent findings. The first is in relation to the expenses alleged to have been incurred by respondent No. 1 in excess of the permissible limit of Rs. 7,000; and the other is in relation to the bribe alleged to have been paid by respondent No. 1 to <NAME>, respondent No. 3. Both the <ORG> and <ORG> have elaborately considered the oral evidence led by the parties and have examined the probabilities in the case and the conduct of the parties respectively. It appears from these findings that neither <ORG>, nor the <ORG> was satisfied that it would be safe to accept the evidence adduced by the appellant and hold that respondent No. 1 was guilty of the charge of excessive expenditure or of offering a bribe to <NAME>. That being so, we have not allowed Mr. <NAME> for the appellant to raise these points before us, because we thought that we would not be justified in examining the evidence ourselves to consider the propriety or correctness of the said findings.

9. That takes us to the two allegations of bribe-giving on which <ORG> has reversed the conclusions of the <ORG>. Even in considering Mr. <NAME>'s contention that the findings recorded by <ORG> on these two points are erroneous, our approach naturally is to enquire whether Mr. <NAME> is able to show any serious error in the approach adopted by <ORG> or in its appreciation of evidence which would justify our interference. In considering this aspect of the matter, the nature of the enquiry would be not whether this <ORG> would necessarily have come to the same conclusion as <ORG> has done, but whether the conclusion of <ORG> is so erroneous that this <ORG> must interfere with it. After all, in dealing with questions of this kind, <ORG> has to take into account the oral as well as the documentary evidence bearing on the points and the other relevant and material circumstances. If, after carefully considering all such evidence, <ORG> comes to a definite conclusion, ordinarily this <ORG> would not feel inclined to interfere with such a conclusion after appreciating the relevant evidence itself. That is the approach which we propose to adopt in dealing with the contentions raised by Mr. <NAME> in the present appeal.

10. The first charge of bribe made by the appellant against respondent No. 1 is that respondent No. 1 persuaded <NAME> to withdraw his candidature from the election. It was his case that <NAME> is an Ad-Dharmi and an influential member of his community; and he urged that <NAME> had been adopted as an official candidate by <ORG>. The appellant specifically averred that respondent No. 1 had offered to <NAME> Rs. 1,000/- with a view to induce him to withdraw from his candidature. In that connection, it was alleged that respondent No. 1 met <NAME> on the 30th January, 1962 along with <NAME>, a <ORG> worker, and <NAME>, the District Secretary of <ORG>, and made a formal request that <NAME> should withdraw. As a result, Rs. 1,000/- were paid and <NAME> withdrew his candidature from the election.

11. In support of this case, the appellant examined <NAME>, P. W. 16, <NAME>, P. W. 30, and <NAME>, P. W. 31, whereas respondent No. 1 examined <NAME>, R. W. 14, and <NAME>, R. W. 13. According to <NAME>, when the bribe of Rs. 1000/- was offered by respondent No. 1, he did not accept the money, but <NAME> did. It would thus be seen that the decision of this question depends on whether the evidence given by the 3 witnesses whom the appellant examined, was to be preferred to the evidence given by the 2 witnesses whom respondent No. 1 examined. <ORG> was not prepared to believe the evidence of the appellant's witnesses. It held that <NAME> appeared to be the tenant of the appellant at the relevant time, and in that sense, was not reliable. In regard to <NAME>, <ORG> thought that part of the evidence given by him was inadmissible; and with regard to <NAME>, it took the view that he was not a trustworthy witness. On the other hand, <ORG> was inclined to take the view that the evidence given by respondent No. 1's witnesses <NAME> and <NAME> was more reliable,

12. There are two comments which <ORG> has made in reversing the conclusion of the <ORG> on this part of the appellant's case. The first comment is that the <ORG> has not given due' consideration to the fact that the evidence of <NAME> and <NAME> satisfactorily shows that <NAME> was not adopted by <ORG> as its own candidate at all; and <ORG> has observed, and we think, rightly, that if <NAME> had not been duly adopted as an official candidate by <ORG>, the whole basis of the appellant's case that he was an important rival and had, therefore, to be persuaded to withdraw from the election, falls to the ground. The evidence to which <ORG> has referred in support of its finding that <NAME> had not been adopted by <ORG> as its candidate, is very satisfactory; and so, the criticism made by <ORG> against the <ORG> in that behalf cannot be said to be unjustified.

13. The other comment which <ORG> has made in regard to the decision of the <ORG> has reference to the criticism made by respondent No. 1 against <NAME>. <NAME> claimed to be a staunch <ORG>worker of long-standing and presumably to support this claim, he appeared in the witness-box dressed in 'khaddar' clothes which generally constitute the uniform of <ORG> workers. It was suggested to <NAME> in cross-examination that he had put on 'khaddar' clothes only a day before he appeared in the witness-box to create an impression that he always put on the 'khaddar' uniform of the <ORG> Party. Dealing with this criticism made by respondent No. 1 against the conduct of <NAME>, the <ORG> has observed in its judgment that the 'khaddar' clothes which <NAME> had worn did not appear to be new. <ORG> has pointed out that this observation made by the <ORG> does not appear to be justified, because the <ORG> had not made any note to this effect when the evidence of <NAME> was recorded. The <ORG> delivered its judgment long after the evidence of <NAME> was recorded, and if it wanted to make an observation of this character, it should have made a contemporaneous note to that effect in the record of the proceedings. We cannot see how Mr. <NAME> can quarrel with the comment thus made by <ORG> against the <ORG>'s observation. Therefore, we are satisfied that no legitimate or valid grievance can be made by the appellant in regard to the finding recorded by <ORG> in respect of the appellant's case that Rs. 1,000/- were paid by respondent No. 1 for the withdrawal of <NAME> from the election.

14. The next charge of bribery is in relation to the payment of Rs. 2,000/- alleged to have been made by respondent No. 1 to <NAME> of village Safdarpore. The appellant's case is that when respondent No. 1 offered Rs. 2,000/- to <NAME> on the 22nd February, 1962, <NAME> was first reluctant to accept that amount; but respondent No. 1 left the amount with him and it was subsequently credited to the <ORG> funds. The appellant urged that the receipt of this amount was expressly referred to in the <ORG>s resolution passed on the 8th March, 1962. In support of this case, the appellant examined <NAME>, P. W. 17, a member of the <ORG> and <NAME>, P. W. 18, a resident or the village. It appears that <NAME> was called upon to produce the records of the <ORG> in order to enable the appellant to prove his case. Ext. P. 41 is the proceeding book in which the resolution of the 5th March, 1962 is recorded. When <NAME> produced the said record, two loose sheets of paper were found among the pages of the Cash Book (Ext. P. 42) and they have been admitted and marked as Exts. P. 43 and P. 43-A in spite of the objection of respondent No. 1. The appellant relied on these two sheets as well as the resolution. Respondent No. 1 examined <NAME>, Sarpanch, R. W. 23, <NAME>, the Secretary of the <ORG> R. W. 20 and <NAME>, R. W. 24, a Member of the <ORG>. <ORG> has held that the position disclosed by the evidence led by the parties was unsatisfactory and that the matter "is not free from doubt", with the result that <ORG> was unable to make a finding that the charge leveled against respondent No. 1 in respect of the payment of Rs. 2,000/- to the <ORG> of the village had been brought home to him.

15. Mr. <NAME> has strenuously contended that <ORG> was in error in recording this finding. He does not dispute the fact that when <ORG> deals with allegations about the commission of corrupt practice by a returned candidate, the charges framed are in the nature of quasi-criminal charges. The proof of the charge has a double consequence; the election of the returned candidate is set aside, and he incurs subsequent disqualification as well. Therefore, when a charge of this kind is framed against a returned candidate, it has to be proved satisfactorily. It is true that <ORG> itself has observed that the cross-examination of <NAME> and <NAME> did not disclose any intrinsic infirmity to justify the rejection of their evidence; but it has also pointed out that there is no reason why the evidence of <NAME>, <NAME> and <NAME> should be disregarded either. Thus, the state of the oral evidence was fairly equally balanced, and the decision of the issue, therefore, depended upon the documentary evidence produced in the proceedings, and it is on the documentary evidence that Mr. <NAME> has placed considerable reliance.

16. The resolution passed by the <ORG> on the 5th March, 1962 reads thus:--

"It was also passed that <ORG> has got collected a sum of Rs. 3,000/- for the school and that the Government should also give a grant of Rs. 3,000/- for the school. This grant should be given Immediately and should be sent without any loss of time in order that the construction work of the school building may be started. This was passed. It was also resolved that a copy of the resolution be sent to the Block Development Officer with the request that the grant of the school should be sent immediately."

Mr. <NAME> contends that the first part of the resolution clearly indicates that an amount of Rs. 2,000/- had been received by the <ORG> from respondent No. 1. It is common ground that at the relevant date, the <ORG> had about Rs. 1,200/- cash balance with it; and the argument is that the said cash balance and the amount of Rs. 2,000/- paid by respondent No. 1 represent Rs. 3,000/- which is referred to as having been collected by the <ORG>. This argument has not been accepted by <ORG>. <ORG> took the view that since the object of the resolution plainly was to secure from the <ORG> a matching grant of Rs. 3,000/-, the recital that Rs. 3,000/- had already been collected need not be literally construed. <ORG> referred to the fact that about Rs. 2,200/-was lying in deposit with the Board which was due to the <ORG> by way of compensation for the acquisition of some land in the village for the construction of a road; and since the <ORG> was entitled to recover this amount, it might have treated that amount as already received. On the other hand, it is shown by evidence that this amount had not in fact been received on the date of the resolution, and was not received even thereafter before the school building was completed. In dealing with the question as to whether the conclusion of <ORG> is right or not, we cannot lose sight of the fact that the object of the resolution was undoubtedly to secure a matching grant from the <ORG> for the construction work of the school building; and so, we are not prepared to hold that <ORG> was in error in refusing to treat me first recital in the resolution too literally.

17. Mr. <NAME>, however, strenuously contended before us that this conclusion of <ORG> is shown to be erroneous by the fact that the construction work was substantially completed between March and July, 1962, and the necessary expenses actually incurred; and he points out that unless Rs. 2,000/- bad been actually received by the <ORG>, it would have been impossible for the <ORG> to pay the expenses incurred in the construction of the school building. This aspect of the matter, no doubt, makes the appellant's case arguable; but the difficulty in accepting the argument lies in the fact that <ORG> hag made a definite finding that the slips of paper Exts. P. 43 and P. 43-A as well as the cash book produced in the proceedings showed that the <ORG> had received considerable amount during the period from its legitimate sources of income. The <ORG> has found that "all that is shown by the entries in the cash book and the abstracts P. 43 and P. 43-A is that the money spent on the work of construction came from the <ORG> funds available to the <ORG> without either any Rs. 2,000/- from <NAME> or from the compensation". The <ORG> has also found that the said documents showed that the <ORG> had about Rs. 1,200/- in hand in March, 1962 and that at no time had the expenditure on the construction work exceeded the amount available in the <ORG> funds up to July. Therefore, the main argument on which Mr. <NAME> rested his case before us does not appear to be well founded. The evidence shows that the <ORG> had funds at its disposal from which the expenditure involved in the construction of the school building could be, and must be, deemed to have been incurred. It is not, therefore, possible to accept the argument that but for the receipt of Rs. 2,000 from respondent No, 1, this expenditure could not have been incurred. That is why we do not think that we would be justified in interfering with the finding of <ORG> on this point.

18. That takes us to the question as to whether respondent No. 1 was guilty of a corrupt practice under Section 123(4) of the Act. The appellant's case is that respondent No. 1 was responsible for the publication of a pamphlet in "<ORG>" which made four false allegations in regard to the personal character of the appellant, and he made those allegations believing them to be false, or not believing them to be true. That is how a charge under Section 123(4) was leveled against respondent No. 1 by the appellant. He also urged that by the publication, in <ORG>, of certain false reports respondent No. 1 had made false statements in relation to the candidature of the appellant knowing that the said statements were false and not believing them to be true. That, again, is a charge under Section 123(4) . The <ORG> and <ORG> have made concurrent findings against the appellant on both these points; but Mr. <NAME> contends that in recording the said findings, they have misdirected themselves in law, and that is why it is necessary to consider the points of law raised by Mr. <NAME> in this connection.

19. Section 123(4) provides, inter alia, that the publication by a candidate of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature of any candidate, being 4 statement reasonably calculated to prejudice the prospects of that candidate's election, is a corrupt practice. It would be noticed that the onus to prove the essential ingredients prescribed by the said subsection is on the appellant. He has to show that the impugned statement has been published by the candidate or his agent or by any other person with the consent of the candidate or his election agent. This fact has been proved in the present case in regard to both the statements. The appellant has further to show that the impugned statement is a statement of fact which is false; that respondent No. 1 either believed that the said statement was false, or did not believe it to be true; and that the statement is in relation to the personal character or conduct of the candidate or his candidature.

20. The question as to what allegations can be said to amount to allegations in regard to the personal character of a candidate, as distinguished from his public character, is not always easy to decide on consideration of abstract principles. The policy underlying the present provision is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponents, but not so his private or personal character. In order that the elections in a democratic country should be freely and fearlessly conducted, considerable latitude has to be given to the respective competing candidates to criticise their opponents' political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as to the public character of candidates are not brought within the mischief of Section 123(4) , because the legislature thought that in the heat of election it may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would not amount to corrupt practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate concerned. Though it is not easy to lay down any general considerations which would help the determination of this issue in every case, in actual practice it may not be very difficulty to decide whether the false statement impinges on the personal character of the candidate or on his public character. It would be inexpedient and undesirable to lay down any general principle in that behalf [vide <CITATION> , ; and <NAME> v. <NAME> Reddy, (1961) 22 Ele LR 261 (SC)].

21. Let us now refer to the statements published in the "Quami Ekta" (Ext. P-22) which according to the appellant, constitute a corrupt practice under Section 123(4) of the Act. The said statements read as under:--

"1. that among those who drink, his rank is very high;

2. that he trimmed his beard which was contrary to the Sikh religion;

3. that he falsely claimed to be the Chief Minister's man and the C. I. D. Police, therefore, was after him; and

4. that he was an unprincipled 'chhokra'."

22. <NAME> the <ORG> and <ORG> have held in the present proceedings that the first two statements have relation to the personal character of the appellant, whereas the last two have relation to his public character. We see no reason to differ from this conclusion. <NAME> the <ORG> and <ORG> have also held that it is not shown that at the time when the statements were made, respondent No. 1 believed them to be false, or did not think them to be true. It is the correctness of this conclusion which is seriously challenged before us by Mr. <NAME>.

23. It appears that a criminal case is pending between the appellant and respondent No. 1 in regard to this pamphlet, and the <ORG> thought that having regard to the fact that the matter had gone before a criminal Court, it would be better if it did not make a specific and definite finding as to the falsity of the statements made in the pamphlet. Even so, the <ORG> considered the oral evidence led by the parties and came to the conclusion which we have already mentioned. <ORG> has adopted the same approach and has concurred with the findings of the <ORG>. It appears that the oral evidence adduced by respondent No. 1 shows that the appellant was in the habit of taking drinks, and that he had trimmed his beard which is contrary to the Sikh religion. Having considered the said evidence, a finding has been made in favour of respondent No. 1 on the lines just indicated.

24. Mr. <NAME>, however, contends that in reaching this conclusion, both the <ORG> and <ORG> have failed to take into account one important fact arising from the pleadings of the parties. He argues that in the petition filed by the appellant, he had specifically, clearly, and definitely averred that the publication of the pamphlet amounted to a corrupt practice on the part of respondent No. 1; and he points out that though respondent No. 1 denied that he had anything to do with the publication of the pamphlet, he did not traverse the plea made by the appellant that the impugned statements were false, that they concerned his personal character, and that they were believed to be false by respondent No. 1 and not believed to be true by him. Mr. <NAME>'s case is that if respondent No. 1 did not specifically controvert the material allegations made by the appellant in his petition in respect of this charge, it was not open to the <ORG> to allow respondent No. 1 to lead evidence in rebuttal; and both the <ORG> and <ORG> should have ignored that evidence and should have given full effect to the fact that respondent No. 1 had not denied the essential ingredients of the charge which had been specifically pleaded by the appellant in his election petition. In substance, the argument is based on the provisions of Order 8, Rule 5 of the Code of Civil Procedure: Mr. <NAME> contends that the procedure prescribed by the Code applies to election proceedings; and so, he relies on the provisions of Order 8, Rule 5 in support of his argument that the present charge should have been held to be proved against respondent No. 1.

25. We are not impressed by this argument. In considering the question as to whether the strict rule of pleadings prescribed by Order 8, Rule 5 applies to election proceedings with all its rigour, we must bear in mind the fact that the charge like the present is in the nature of a criminal charge and the proceedings in respect of its trial partake of the character of quasi-criminal proceedings. It is true that Section 90 of the Act provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the <ORG>, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This provision itself emphasises the fact that the whole of the Civil Procedure Code is not fully applicable. What the section provides is that the proceedings should be tried "as nearly as may be" according to the Code of Civil Procedure. If the contention raised by Mr. <NAME> is accepted at its face value, it may logically lead to this consequence that if a returned candidate does not controvert the allegations made by the petitioner in his election petition alleging the commission of a corrupt practice by the returned candidate, a finding would have to be made in favour of the petitioner without any evidence at all. In other words, the question is: can a corrupt practice prescribed by Section 123(4) of the Act be held to be proved merely on the ground that no specific denial has been made by the returned candidate in his written statement in that behalf? In considering this point, we cannot overlook the fact that the onus to prove the essential ingredients of Section 123(4) is on the petitioner, and so, it would be for him to prove that the statement is false, and that the other requirements of the section are satisfied. Having regard to the nature of the corrupt practice which is prescribed by Section 123(4) , we are not prepared to hold that the strict rule of pleadings prescribed by Order 8, Rule 5 of the Code can be blindly invoked in election proceedings of this type.

26. Besides, it is plain that there is a proviso to Order 8, Rule 5 which, in terms, confers jurisdiction on the <ORG> that even if a fact can be deemed to be admitted by virtue of the said rule, it may nevertheless be proved otherwise than by such admission. This proviso clearly shows that even in civil proceedings to which the Code applies, it is open to the <ORG> to exercise its discretion and require a party to prove a fact even though an admission of the said fact by the opponent can be inferred by the strict application of Order 8, Rule 5; and that is precisely what the <ORG> has done in the present ease. When this question was argued before the <ORG>, it examined the arguments urged by both the parties and held that in the interests of justice, it was necessary to allow respondent No. 1 to lead evidence in rebuttal; and it is in the light of the evidence led by respondent No. 1 that the <ORG> made its finding on this issue against the appellant and the said finding has been confirmed by the High <ORG>. Therefore, we do not think that the points of law raised by Mr. <NAME> in respect of this charge really assist him to challenge effectively the correctness of the findings recorded by the <ORG>s below.

27. Then as to the charge that the publication of certain statements and posters by respondent No. 1 amounted to a corrupt practice under the latter part of Section 123(4) , the position is not any better for the appellant. It is true that the publication of a false statement in relation to the candidature of the appellant would amount to a corrupt practice if the other ingredients of the said provision are satisfied. The <ORG> and <ORG> have held that the false statement on which the argument is founded, does not have any reference to the candidature of the appellant at all, and in our opinion, this conclusion is right. Let us briefly indicate why?

28. The poster in question reads thus:--

"IMPORTANT ANNOUNCEMENT OF <ORG>, Amritsar Vote for <NAME> Dear Khalsa Ji.

It is for your information that <ORG> has nominated <NAME> as its candidate. As the letter could not reach in time. Therefore he has been allotted the symbol of "Tree". We appeal to all the Akali workers and the <ORG> that they should support him and make him successful. <NAME> is the only tried Sewak of the <ORG>. He has rendered great services during the Akali Morcha. Even now there is a warrant of arrest against him. The Sikh Masses should not labour under misunderstanding and they should help in flying the <ORG>ic Flag high.

<NAME>, <NAME>, Vice-President. President. <NAME>, <ORG>, Urmur".

No evidence has been brought on the record to show that either <NAME> or <NAME> signed this document. In fact, Master <NAME> who was the President of <ORG> has denied that he or <NAME> had signed it; and so, in relation to the said two signatures the poster is a false document. It is also proved that respondent No. 1 is responsible for the publication of this document. But the question which arises for our decision is: does this document have relation to the candidature of the appellant? What this document purports to do is to ask the Akali workers and the <ORG> to support the candidature of <NAME>. The argument is that since the appellant had received the support of the <ORG> party, this poster was intended to weaken the appellant's position by making a false representation to the followers of the <ORG> that <NAME> deserved their support, because he was the only tried <NAME> of the <ORG>. It seems to us that the requirement of Section 123(4) is plain and unambiguous. The impugned statement on which a charge under the said provision can rest, must be shown to be false, and must have relation to the candidature of the candidate. Now, this document and the other documents which were similarly published do not make any reference to the candidature of the appellant at all. Besides, it is significant that the appellant had not been adopted by the <ORG> party as its official candidate, so that if the poster represented to the Akali workers that <NAME> deserved their support, it cannot be said even by necessary inference or implication that the candidature of the appellant was referred to; perhaps such an inference could have been drawn if the appellant had been adopted as an official candidate by the <ORG> party.

29. On the contrary, the evidence in the case shows that <NAME> was intended to be adopted by the <ORG> party as its official candidate. A telegram Ex. R. 2 was sent by <ORG>, Amritsar to the Returning Officer requesting him to allot "HAND" which was the symbol of the <ORG>, to <NAME> who was an Akali candidate; but apparently, this telegram was received late and the symbol of "Hand" could not be allotted to <NAME>. The evidence given by <NAME> (R. W. 17) Secretary of the <ORG>, clearly shows that the <ORG> had nominated <NAME> as a candidate and a telegram had been sent to the Returning Officer by <NAME>, who was the General Secretary, under the authority of <NAME>. Ex. Rule 3 shows that <NAME> and <NAME> had been authorised by the <ORG> to request the Returning Officer to allot the adopted candidate the symbol chosen by the <ORG>. It may be that ultimately, <ORG> decided to support the appellant, and not <NAME>; hut that has no relevance on the point which we are considering under Section 123(4) Reading the impugned poster fairly, it is difficult to accept Mr. <NAME>'s contention that the said poster makes a false statement in relation to the candidature of the appellant. That being so, it is unnecessary to consider whether the other requirements of Section 123(4) in relation to this poster are satisfied or not.

30. That leaves one more point to consider, and it is related to the order passed by the <ORG> directing the inspection of the ballot boxes and examination of the voting papers cast by the electors in favour of the respective candidates. We have already noticed that the Election <ORG> allowed the appellant to inspect the ballot boxes, examined the objections raised by the appellant in regard to the validity or invalidity of a large number of voting papers, and ultimately counted the votes cast in favour of the appellant and respondent No. 1. <ORG> has found that the <ORG> was in error in allowing inspection of the ballot boxes, and it has also held that the finding made by it after examining the objections raised by the appellant, is also not correct. It is unnecessary for us to consider this latter part of <ORG> conclusion, because, in our opinion, <ORG> was right in holding that no case had been made out by the appellant for the inspection of the ballot boxes at all. That being so, it is unnecessary to enquire what would he the result if the objections raised by the appellant are considered and the votes are recounted. So, the narrow question at his stage is: was the <ORG> justified in allowing inspection of the ballot boxes in the present proceedings.

31. The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the <ORG>, in terms, confers on it, by Clause (a), the powers which are vested in a <ORG> under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the <ORG> can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the <ORG> has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the <ORG> must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the <ORG> to consider whether in the interests of justice, the ballot boxes should he inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes mid for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the <ORG> to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; hut in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable.

32. Whenever <ORG> is called upon to consider this question, it should not ignore the safeguards which have been prescribed by the relevant Rules prescribed in Part V of the Conduct of Elections Rules, 1961. Let us briefly indicate the broad features of these Rules. Under Rule 53, candidates, their election agents or counting agents are admitted to the place fixed for counting of votes. Rule 54 emphasises the importance of the maintenance of secrecy of voting. Rule 55 deals with the scrutiny and opening of ballot boxes; before a ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it: is intact. The Returning Officer has himself to take care to see that no ballot box has been tampered with. In case any tampering of the ballot boxes is disclosed, the Returning Officer has to take action under Rule 58. Rule 56 provides for the scrutiny and rejection of ballot papers. Rule 56 (1) lays down that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Then objections are raised as specified by Sub-rule (2) and are dealt with in accordance with the provisions of other sub-clauses of Rule 56 (2). It is thus clear that the scheme of Rule 56 is that every ballot paper can be examined by the counting agent and objections can be raised in respect of it if the election agent feels that a valid objection can be raised. It is after these objections are examined and dealt with according to Rule 56 that the stage of counting votes arrives. Even after the completion of the counting, it is open to a candidate or his election agent to apply in writing to the Returning Officer for a re-count of all or any of the ballot papers already counted stating the grounds on which he demands such recount. That is the effect of Rule 63 (2). After all this procedure has been gone through, the Returning Officer completes the result sheet in Form 20, and signs it. Once that is done, no application for a re-count shall he entertained. We have referred broadly to the scheme of these Rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, <NAME> knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be app<NAME>d to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.

33. This question has been considered by this Court on several occasions. <CITATION> , , this Court observed that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. The same view has been expressed in Smt. Dr. <NAME> v. <NAME>, (1964) C. A. No. 222 of 1964, D/- 18-3-1964 (<ORG>), and in <NAME> v. <NAME>, (1965) C. A. No. 45 of 1965, D/- 10-2-1965.

34. Let us then examine whether the appellant's petition contained a concise statement of the material facts on which a claim for inspection of ballot papers can be justified. In the application made by the appellant on the 7th March, 1963, he urged that in the election petition filed by him, it had been averred that a very large number of votes purported to have been cast in favour of the appellant had been improperly rejected, and that has materially affected the result of the election; and he added that there was also an allegation that a large number of votes which were invalid had been improperly accepted in favour of respondent No. 1 which has also materially affected the result of the election. This application further sets out the appellant's version that the Returning Officer disclosed a partisan attitude and the counting and examination of votes was done in a very irregular manner. The appellant pleaded that he had led some evidence regarding the misconduct of the Returning Officer at the time of the counting; and so, a prayer was made that the ballot papers may be allowed to be inspected "in order to enable the appellant to establish his case both regarding improper rejection and reception of ballot papers and the non-compliance with the rules under the Act on the part of the Returning Officer which have materially affected the result of the election in so far as respondent No. 1 is concerned". It may be observed that at the time when the application for inspection was made, evidence had already been led before the <ORG>; and Mr. <NAME>'s contention is that the <ORG>, on considering the evidence in the light of the allegations made by the appellant, was satisfied that an inspection should be ordered in the interests of justice; and he argues that <ORG> was in error in reversing this order on appeal.

35. We are not prepared to accept this contention. The order passed by the <ORG> clearly shows that the <ORG> did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the <ORG> has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the <ORG> should have first enquired whether the application made by the appellant satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the <ORG> to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained In it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that <ORG> was right in coming to the conclusion that the appellant had failed to make out a case for the inspection of the ballot boxes in this case.

36. Before we part with this appeal, we would like to refer to three matters which show that respondent No. 1 did not contest this litigation with clean hands. The <ORG> has referred to the part played by respondent No. 2 <NAME> in the present proceedings, and has made a bitter comment about the relation between <NAME> and respondent No. 1. <ORG> has referred to the sordid story about the part played by <NAME> in collusion with respondent No. 1 in relation to the evidence which he gave in the present proceedings. Similarly, the part played by respondent No. 1 in assisting the adoption of a somewhat coercive and terrorising attitude in relation to <NAME> who was a witness for the appellant, has also been criticised by the <ORG> in strong words. While expressing our concurrence with the comments made by the <ORG> and <ORG> in regard to these three matters, we wish to express our strong disapproval of the course of conduct adopted by respondent No. 1 in relation to these three matters. We have no doubt that the said conduct of respondent No. 1 is wholly unworthy of the high position which he holds in public life.

37. The result is, tine appeal fails and is dismissed. There would be no order as to costs.


JUDGMENT <NAME>, J.

1. This suit was brought in <ORG> at Calcutta on August 22, 1933. The plaintiff was <NAME> daughter and only child then surviving of one <NAME>, a Hindu governed by the <NAME>, who had died in 1929. He had in his lifetime established certain family idols and had dedicated to them considerable properties movable and immovable/ His only son <NAME> had died in 1932 leaving a widow <NAME> and three daughters.

2. By her suit <NAME> claimed to have become on the death of <NAME> entitled to the sebaiti of the idols and to the management of the debut-ter property. She impleaded <NAME> and her daughters as persons wrongfully in possession of the debutter properties and falsely claiming to be se-baits : though as between themselves the widow on ordinary principles of succession would of course take before the daughters. <NAME> and <NAME> have both died while the present appeal to His Majesty was pending, the former on February 15 and the latter on January 18, 1939. The question to be answered is whether on <NAME>'s death the sebaiti devolved upon his heirs-that is, in the first place, upon his widow-or whether it went to <NAME> as the person who at that date was the nearest surviving heir of the founder <NAME>. The learned trial Judge <NAME> took the latter view and by his decree of August 26, 1937, found in favour of <NAME>, but on appeal <NAME>, and <NAME> found in favour of <NAME>, and their decree of July 11, 1938, dismissed the suit. The same principles apply on the death of these two ladies. On the view taken by the trial Judge the sebaiti is now vested in the sons of <NAME> and of the sister who had predeceased her-the seven appellants. On the view taken by the appellate bench it has devolved, upon <NAME>'s daughters, the three respondents.

<NAME> (d. 1929).

<NAME> (d. 1926).

| _________________________________________________________ | | | Bhabatarini (d. 1939) <NAME> (d. 1932) Sudhanshu Badani =Krishnandan =<NAME> (d. 1939) (d. 1928) | | =Niranjan | | | | _______________________________________ | | | | | | | Ashalata Kanaklata Diptilata | | (Respondent) (Respondent) (Respondent) | | | | _________________________________ | | | | | <NAME> 2 daughters | (Appellant) (Appellant) | | _______________________________________________________________ | | | | | | Kiriti Bihbuti Mritunjoy Jyotirmoy Hiranmoy 4 daughters (Appellant) (Appellant) (Appellant) (Appellant) (Appellant)

3. The terms of the dedication made by <NAME> are to be found in an arpannama or deed of dedication dated March 31, 1922. Seven years afterwards he purported to cancel this instrument and to re-dedicate the same properties on different terms by a deed dated February 13, 1929 ; but <ORG> have found and it is now accepted by both parties to the present appeal that this deed of 1929 had in law no effect upon the previous dedication. The provisions made by <NAME> for the devolution of the sebaiti are to be found solely in the deed of 1922. Those which became effective in the events which happened are that <NAME> and his wife <NAME> should be the first sebaits and that on the death of <NAME> (who survived his wife) <NAME> should be sebait in his stead. This appointment of <NAME> was followed by provisions purporting to say who should succeed him in the sebaiti, but these provisions were in law of no effect. Upon the death of <NAME> in 1932 the specific provisions validly made by <NAME> as founder with respect to the succession to the office of sebait became exhausted.

4. What happened then to the sebaiti right ? Cases are not wanting in which it has been said that it goes to the heirs of their founder. Of these the leading authority is perhaps <NAME> v. <NAME> (1889) L.R. 16 I.A. 137, where Lord <NAME> said (p. 144):

According to Hindu law, when the worship of a thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to shew a different mode of devolution.

The case itself was one in which a custom of primogeniture obtained in the plaintiff's family. The principle thus enunciated was said to be illustrated by the case of <NAME> v. <NAME> (1870) 5 Beng. L.R. 181, where the founder had appointed his sister sebait and provided that each sebait should appoint his or her successor. The sister having died without making any appointment, it was held by <NAME> and <NAME> that " the managership must revert to the heirs of the person who endowed the property." To appoint to the founder as the person from whom descent was to be traced was enough to end the case as the suit was brought by the sister's husband's brother claiming as her heir and the defendants were the founder's widows. The language of Lord <NAME> above cited was restated by Sir <NAME> in <CITATION> (1904) L.R. 31 I.A. 203 : s.c. 7 Bom. L.R. 765, in the form (p. 208).

that the title to the property, or to the management and control of the property, as the case may be, follows the line of inheritance from the founder.

5. Save for one case, however, no decision appears to have been directed to declaring for the purposes of any case like the present, the exact method of determining the individual person or persons who should be the first takers after those specifically nominated to the office by the founder. The decision which deals with this precise question is <CITATION> (1915) 20 C. W. N. 314, 404, a decision of <NAME> and Richardson JJ. In that case the founder left a widow and six sons. He nominated his widow and two sons to be successively sebaits after his death and gave no further directions. When the last of the three nominated sebaits died, it was held that the next takers were "the heirs of the founder at the time"-namely, the four sons then surviving. It was argued to the contrary that on the death of the founder all his sons took a vested interest subject to the right of the nominated persons-that is, a remainder subject to three successive life estates in the office. This view was, however, rejected, Sir Asutosh <NAME> saying (p. 317) :

We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life estate, as expounded by their Lordships of <ORG> in <NAME> v. <NAME> (1846) 4 M. I.A. 137 has no application to cases of the description now before us. No doubt, a <NAME> holds his office for life, ( <CITATION> (1907) I.L.R. 35 Cal. 226) but this does not signify that he has a life interest in the office with the remainder presently vested in the next taker. The entire office is vested in him, though his powers of alienation are qualified and restricted.... The position of a <NAME> is analogous to that of a Hindu female (widow, daughter or mother) in possession of the estate of the last full owner rather than to that of the holder of a life estate. When a Hindu female is thus in possession she represents the estate completely and though her powers of disposition may be of a restricted character, no one else has a vested interest in the estate during her lifetime. Similarly, when a founder has given valid directions as to the devolution of the <NAME>ship, as in the present case upon the death of the last <NAME>, the office vests in persons who at the time constitute the heirs of the founder; provided the last <NAME> has not taken it absolutely ; when the oftice has so vested in them, upon the death of each member of the group, it passes by succession to his heir....

6. This is the principle for which Mr. <NAME> on behalf of the appellants now contends-that the necessity of treating the sebait in office as completely representing the idol and its property prevents the recognition of any other person as having a vested interest in remainder ; and thus prevents any interests in the sebaiti from being, as the learned trial Judge expresses it, " carried along the straight line of inheritance from the founder ", during the time that the office is held by any person to whom the founder has granted the sebaiti but not absolutely or so as to devolve upon his heirs.

7. The learned trial Judge in a very clear and careful judgment followed the decision in <NAME>'s case. The learned Chief Justice took the view that, subject to the right given to <NAME> by the deed of 1922, " the sebaitee and the right of disposing of it" remained vested in <NAME>, and on <NAME>'s death passed to <NAME> as his heir.

<NAME> then had not only a ' life' sebaitee but the right of disposing of the sebaitee ; he had the complete heritable and descendible rights of a sebait.

so that his rights passed to his heirs under the Hindu law. Their Lordships do not appreciate that any question arises in this case as to a right of disposing of the sebaiti, and they do not here discuss this somewhat special subject-matter. <NAME> addressed himself to the reasoning of <NAME>'s case. He was critical of " the observation that there is no vested remaindtr in anybody in such cases." He pointed out that a Hindu widow is regarded as a surviving half of her husband, and observed that the idea that there can be no residuary right in anybody so long as a sebait is actually in office can be supported only on the principle that sebaiti is an office pure and simple and not a property. His conclusion was thus expressed :

To me it seems that both the elements of office and property, of duties and personal interest, are mixed up and blended together in the conception of sebaitship. One of the elements cannot be detached from the other. The entire rights remain with the grantor when a deity is founded and it is open to him to dispose of these rights in any way he likes. If there is no disposition, sebaitship remains like any other heritable property in the line of the founder and each succeeding <NAME> succeeds to the rights by virtue of his being an heir to his immediate predecessor and not to the original grantor. If it is disposed of completely and absolutely in favour of another person, there remains nothing in the grantor except the possibility of a reverter when there is a failure of extinction of the line of <NAME>s indicated by him. If, on the other hand, the founder has parted with his rights only in a partial manner for the lifetime of the grantee the residue still remains in him and his heirs, and on the death of the grantee, the heir of the founder living at the time is entitled to the <NAME>ship. If the grantee in such cases happens to be the sole heir of the founder upon whom the residuary right devolves at the same time and he becomes the <NAME> under law as well, then, whether or not we invoke the technical doctrine of merger or coalescence of the particular estate with the residue, his position in my opinion is that of an absolute <NAME> whose rights devolve upon his heirs and not upon the heirs of the founder at his death. If there was no grant in his favour, he would have been entitled to an estate of inheritance under law as regards the <NAME>ee, and the fact that there is a grant in his favour of a limited right cannot make his position worse, and take away from him the higher rights which he had irrespective of the grant. It would be opposed to all principles of law to require that in such cases on the death of the <NAME> who was himself the heir of the grantor, the successor can come in only to use the technical phrase per formam doni.

8. The fact that the person nominated by the founder to succeed him was not a stranger but his only son appears at first sight at least to put a special element of difficulty in the way of the appellants. But their Lordships are not of opinion that this case can or should be dealt with by distinguishing, it from <NAME>'s case without examining the principles therein laid down. It was the decision of two learned Judges of distinction, one of whom as a Bengali lawyer of wide experience had very exceptional qualifications for forming an opinion upon the matter. The authority of the decision is not in their Lordships' view impaired by reason that the same result might have been arrived at on an alterative ground-namely, that the sebaiti had been given absolutely to the last of the nominated persons. Nor can it be fairly said that the law as to sebaits has of late altered in material respects by reason of the discussions which ended in the full bench case of <NAME> v. <NAME> (1932) I.L.R. 60 Cal. 452, F.B. The effect of that case and of the <ORG>'s decision which confirmed it- <CITATION> (1936) L.R. 63 I.A. 448 : s.c. 38 Bom. L.R. 1250-was, however, to emphasise the proprietary element in sebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. It must be noticed, however, that though certain cases are referred to in the judgment in <NAME>'s case, the learned Judges do not profess to be following any previous decision as covering the particular point now in question, Taking their stand upon the proposition that the entire office is vested in the person who holds it at any given time, they arrive at the conclusion that it is impossible to give recognition to any interest as vested in another. Abstract reasoning of this character is never without its perils in matters of first impression. Before the results can be accepted a careful regard must be had to practical consequences and to competing analogies or principles. This is all the more advisable in the present case since there are elements in the Hindu law of idol and sebait which the ordinary Hindu law of property finds somewhat intractable. Their Lordships cannot but agree with the remark of <NAME> that analogies-tenant for life, tenant in tail, Hindu woman's estate-however helpful can be pushed too far.

9. Reference was made by the trial Judge and in the argument before their Lordships to the case of <CITATION> , and it may be as well to notice that no question as to the correctness of the rule in <NAME>'s case was raised by the facts or considered by the <ORG>. The testator <NAME> left three sons, two of whom, <NAME> and <NAME>, were appointed by him to be the first sebaits and the provisions of his will marked out an invalid and illegal line of descent to take effect upon their death. On the death of these two sons, there survived the remaining son, <NAME>, one son of <NAME>, and four sons of <NAME>. <NAME> was not so uninstructed as to claim that he alone inherited the sebaiti right but only claimed that he was one of the persons entitled as heirs of his father. This was made clear by the sixth paragraph of his affidavit of August 15, 1933, and it was accepted that, as <NAME> put it in his judgment, " <NAME> would succeed along with the heirs of <NAME> and <NAME> as joint heirs of the testator." Under the <NAME> as under the Mitakshara grandsons whose father is dead take simultaneously with sons and per stirpes. The <ORG> having held overruling the appellate bench that the line of descent prescribed by the testator to take effect upon the death of <NAME> and <NAME> was illegal, applied " the ordinary Hindu law of succession " and restored the decree to <NAME>, that the persons to succeed the nominated sons were " the heirs of the testator."

10. The case now before the <ORG> is not one where the founder has made no disposition with respect to the <NAME> nor. has he disposed of it absolutely and completely in favour of another. It requires an intermediate case to raise the difficulty which is here presented-a case where the only disposition made by the founder is that he has made a grant to X, or to X and Y in succession, of the office of <ORG> without intending or at least without effectively directing that the heirs of either are to take. Had no such nomination been made, it is clear that the <NAME> would have devolved in the line of the founder in like manner as property inherited from a male owner who had held it in severalty and that the next heir if a male would become a fresh stock of descent. Unless, therefore, there be cogent reason to the contrary, the principle to be applied to the intermediate case would seem to be that the course of devolution prescribed by the ordinary law should give way so far as is necessary to let in the persons nominated by the founder, but no further. It is here that the analogy of the Hindu woman and the reversioner is apt to be misleading. The Hindu widow is not the only person who can have a Hindu woman's estate and the point that she is said to be a surviving half of her husband might perhaps be overstressed. But the Hindu widow-first of all the female heirs in the table of succession-never takes in the presence of son, grandson or great grandson : and when upon her death the estate devolves upon the person who is the nearest living heir of her husband, this cannot operate to cut out heirs of a son or grandson who survived him. What the appellants seek in the present case is to cut out the daughters of <NAME> who are, the heirs of <NAME>'s surviving son, since they are not heirs of <NAME> at all. Disparate are the results of analogy.

11. Still, it must be recognised that the sebait must completely represent the idol or the endowment-the deity, the religious purpose, the debutter property. As laid down by the <ORG> in a case already cited (<NAME>'s case) the right of suit is in the sebait in such sense that if the sebait be a minor the period of limitation is postponed in view of his incapacity. It would be intolerable that the office should be duplicated by including with the incumbent his successor or that third parties should be required to deal both with sebaits and with presumptive sebaits. This is a practical requirement and proceeds from reasons which have not much in common with the case of a Hindu woman's estate. The Hindu woman " represents her husband's estate " in the sense that she is owner of it-though a limited owner ; having a power of disposition which is limited by reason that she is not herself a stock of descent and has a duty to protect the reversion. The reversioner when he succeeds to the estate may deal with it at his pleasure. The sebait has certainly a right of property in his office and it may be correct to say that he has some sort of beneficial interest in the debutter property, but the idol is the owner of the property and the limit set to the sebait's power of disposition is set not to preserve the interest of the next sebait but to maintain and preserve by proper management the endowment or religious institution. The nature and extent of the power of alienation for necessity is laid down in Hunoommpersaud Panday v. <NAME> (1856) 6 M. I.A. 393- perhaps the most often cited of all the cases in the Indian reports ; for the principles expounded by Lord Justice <NAME> apply not only to the sebait and the Hindu widow but to the karta of a joint family acting on behalf of minor members and to a mother acting as guardian of the property of her minor son.

12. The question remains to be answered on its merits : If it be recognised that the sebait must completely represent the idol, does it follow that nothing save a spes successions can be attributed to anyone else? If the founder appoints X to be the first sebait but not absolutely or so as to carry any interest to any heir of X, has he left no interest in himself ? Their Lordships agree with the appellate bench of <ORG> that these questions cannot be answered as the appellants' case requires. They think that <NAME>'s case should on this point be overruled. It seems possible in theory to lay down a series of rules for determining which person in a family should succeed to the office of sebait to the family idol without assuming that the office is property at all. Such rules might be made to follow more or less completely the same course as the line of succession to the property of a Hindu male owner. This, however, is no more than a fancy to be mentioned only for distinction's sake and to be put aside as soon as mentioned. It is not a theory which anyone maintains nor would it serve the appellants' purpose to suggest it. It must now be taken that the sebaiti is property, that it is not a catena of successive life estates (Gnanasambanda Pandora Sannadhi v. <NAME> (1899) L.R. 27 I.A.69, 78 : s.c. 2 Bom. L.R. 597), but is heritable-heritable, property which in the first instance is vested in the founder. It must further be accepted that the founder may direct that a designated person should hold the office during that person's life either immediately or on the death of a previous holder ; and that such direction-subject to the relevant conditions as to perpetuity, whatever these may be-will be good although it carries no right to the heirs of the grantee and does not amount to a complete disposal of the sebaiti.

13. If then on the death of the grantee the sebaiti goes to the founder or his heirs, this is because the right of the founder is heritable and he has not completely disposed of the interest which he has therein. It is impossible to represent this as a spes successionis. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of the grant. The grant did not exhaust it or terminate the founder's interest. On the death of the grantee the sebaiti " reverts " because the heritable interest of the founder has ceased to be qualified by the grant.

14. It is only with some difficulty that any theory can successfully hold together the two elements of "office" and "property", but the sebaiti right involves both and neither element is to be discarded. Their Lordships are not certain that they have succeeded in forming a precise notion of the difficulty that is apprehended from admitting the possibility that an interest in remainder can be vested in the founder or an heir of the founder during the incumbency of the grantee.

15. What is the class of case in which it is thought that the existence of this right will prevent the sebait from representing the idol with that completeness which has hitherto been ceded to him ? Rights to prevent mismanagement, to preserve the foundation, can be asserted by anyone having an interest therein. Questions may arise which affect the title to the sebaiti right itself. But what claim to interference with the idol's worship or property can be based upon a right which has not vested in possession ? Why in any case should the element of " office " be regarded so little or disregarded so completely ? The Courts need give no countenance to such suggestions. If the office is heritable property and may be the subject of a grant limited to the period of the donee's life, the grant may be regarded as disabling the founder and any heir of his from having or asserting during the donee's life any right to represent the idol or manage its affairs or from impairing in any manner the right of sebaiti which has been granted and which has long been well defined by the law and practice of Hindus.

16. Applied to the facts of the particular case before the <ORG>, the argument for the appellants though presented with great clearness and ability by Mr. <NAME> remains unattractive. <NAME>, <NAME>'s only son, survived him. <NAME>'s only valid disposition of the sebaiti was in favour of <NAME>. His attempts to confer any interest to take effect after <NAME>'s death were illegal and ineffective. Yet the interest given to <NAME> is said to defeat his heritable right and to exclude his heirs. Their Lordships cannot accept such doctrine, which they regard as correctly refuted by the passage which they have cited from the judgment of <NAME>

17. They will humbly advise His Majesty that this appeal should be dismissed. The appellants must pay the respondents' costs.


PETITIONER: AIR VICE MARSHAL S.L. CHHABRA VSM (RETD.) Vs. RESPONDENT: UNION OF INDIA AND ANR. DATE OF JUDGMENT11/05/1993 BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) KULDIP SINGH (J) CITATION: 1993 SCR (3) 669 1993 SCC Supl. (4) 441 JT 1993 (3) 359 1993 SCALE (2)885 ACT: Selection by <ORG> for promotion to rank of Air Vice Marshal-Adverse remarks in Appraisal report for 1986 communicated in 1988, and expunged in 1989-Whether appellant entitled to promotion since selection in 1987 and moderation of appraisal report for 1987. HEADNOTE: Appellant had been cleared for all selection grade promotions up to rank of Air Commodore. <ORG> for promotions to rank of Air Vice Marshal considered the appellant in 1987, but did not recommend him for promotion as only one appraisal report was available. The Board decided that appellants performance be watched at least for a year more. Appellant not selected by <ORG> in 1988 also, but no reasons on record as to why he was not recommended for promotion. Adverse remarks in appraisal report for 1986, were communicated to the Appellant in 1988 and on representation by him, adverse remarks were expunged in 1989. Appellant cleared for promotion by the <ORG> in 1989. Appellant filed writ petition in <ORG> seeking directions for promotion since selection in 1987 and also moderation of appraisal report for 1987 and consequential extension of service for one year w.ef. the date of his retirement i.e. 31.10.1990. The <ORG> held that appellant was entitled to promotion to rank of Air Vice Marshal by <ORG> in 1988 with all consequential benefits and directed the respondents to fix appropriate date of promotion on basis of the selection by the <ORG> in 1988. On appeals, filed by special leave petitions, by both parties, this <ORG>, HELD : That the <ORG> while considering suitability of an officer for promotion to a higher post takes into consideration several factors and its decision is not based solely on appraisal report of Controlling Officer. As the Selection Bard had decide in 1987 that performance of the appellant be watched for at least one year more, it was neither possible for the <ORG> nor this <ORG> to act as a court of appeal against the decision of the <ORG>. Public interest should be the primary consideration of all selection Boards constituted for selecting candidates for promotion to higher 670 posts. The court cannot encroach over this power by substituting its own view and opinion. There is no scope to interfere with the decision of the selection board for 1987. (672-F, 673-B) The appellant would have been promoted to the higher post in 1988, in the normal course. It appeared that he was not promoted because of the adverse remarks in 1986, No other explanation was furnished by the respondents. The <ORG> directed that the appellant be reconsidered for promotion with reference to the year 1988, as the adverse remarks had been expunged. (673-E-F) This <ORG>, further held that neither the <ORG> nor this <ORG> can moderate the appraisal and grading of the appellant for a particular year. While exercising the power of judicial review, <ORG> shall not venture to assess and appraise the merit or the grading of an officer. This <ORG> did not give any direction for moderation of appraisal report of 1987, and concluded that the appellate was not entitled to extension of service for one year, claimed by him. (675-A) JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2811-2812 of 1993.

From the Judgment and Order dated 16.11.1990 of <ORG> in C.W.No. 1711 of 1990.

<NAME>-in-person.

<NAME>, <ORG>, <NAME>, Mrs. <NAME>, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, <NAME> (,ranted.

The appellant, while holding the post of Air Vice Marshal, filed a writ application questioning the validity of the decision of the union of India,refusing to moderate the Appraisal Report of 1987; to promote the appellant to the rank of Air Vice Marshal from a prior date, and to grant extension of the service of the appellant for one year, in the rank of Air Vice Marshal.

There is no dispute that the case of the appellant had been cleared for all selection grade promotions up to the rank of Air Commodore. A meeting of <ORG>, to consider the cases for promotion to the rank of Air Vice Marshal, was held in February, 1987. In that meeting, the case of the appellant was also considered, but his name was not recommended for promotion,on the ground that there was only one report available by that time. A decision was taken by <ORG> to watch the performance of the appellant for at least a year more, to assess his potentiality and suitability, for discharging the higher responsibility attached to the rank of Air Vice Marshal. He was also not found fit for promotion by <ORG> of 1988.

By a letter dated 22nd February, 1988, the appellant was informed of the adverse remarks made in his Appraisal Report for the year 1986. The following remarks were communicated to him :-

"One gets the impression that he is constantly trying to get round his superiors. by sweet talk/visits/gifts, to get what he wants-by way of good reports, postings, courses, decorations etc."

The appellant made statutory complaints to different authorities. On basis of the station made. the aforesaid remarks were expunged sometime in January/February. 1989. His request for moderation of the Appraisal Report for 1987 was, however, not accepted. As the adverse remarks aforesaid made in his Appraisal Report of 1986 were expunged, he was cleared for promotion by <ORG> of 1989.

According to the appellant, because of the aforesaid adverse remarks made in his Appraisal Report of 1986, he was denied promotion to the post of Air Vice Marshal in the years 1987 and 1988. As such, when the said adverse remarks were expunged in the year 1989, the question of his promotion to the post of Air Vice Marshal should have been considered afresh with reference to the year 1987. It was asserted that the adverse remarks, given in his Appraisal Report of 1986, did create a bias against the appellant. It was pointed out that although the adverse remarks aforesaid had not been communicated to the appellant, still they had been placed before <ORG> in the year 1987. According to the respondents, the aforesaid remarks were never treated as adverse and because of that it was not considered necessary to communicate them to the appellant, before they were placed before <ORG>. The learned Additional Solitor General, however, could not give any explanation as to why those remarks were later communicated to the appellant for his comment and explanation. Apart from that, it is an admitted position that later, those remarks have been expunged. We fail to appreciate as to how remarks in the Appraisal Report, saying that the officer concerned "is constantly trying to get round his superiors, by sweet talk/visits/gifts, to get what he wants-by way of good reports, postings, courses, decorations etc.", could be considered to be not adverse remarks, especially in context with <ORG>, where an officer is expected to be straightforward, upright, conscious of the fact that his recognition and promotion are dependent, only on the merit and the service, he has rendered to the nation. <ORG> has come to the conclusion that in view of the remarks, having been expunged in the year 1989, the case of the appellant has to be reconsidered. It has been held, that the appellant was entitled to be promoted, to the rank of Air Vice Marshal by <ORG> of 1988, with all consequential benefits. A direction has been given to the respondents to fix the appropriate date of the promotion of the appellant on basis of his selection by <ORG> of 1988.

But, according to the appellant, a direction should have been given to promote the appellant to the rank or Air Vice Marshal by <ORG> of 1987 instead of 1988, when it has been established that the adverse remarks, made in the Appraisal Report of the year 1986 were placed before <ORG> of 1987 and those adverse remarks have been later expunged.

It is well-known that <ORG>, while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several factors and it is not solely based on the Appraisal Report of the controlling officer. The learned Additional Solicitor General produced the proceedings of <ORG> of 1987 and pointed out that <ORG> had postponed the promotion of the appellant on the ground, that only one report was available by that time and as such decision was taken to watch the performance of the appellant at least for a year more, to assess his potentiality and suitability for discharging the higher responsibility attached to the rank of Air Vice Marshal. The aforesaid fact has been mentioned in the proceedings of <ORG> of the year 1987. In such a situation, it was neither possible for <ORG>, nor is possible for this Court to act as a court of appeal against the decision of <ORG>, which has been vested with the power of selection of an officer for being promote to the rank of Air Vice Marshal. No oblique motive has been suggested on behalf of the appellant against any of the members of <ORG> and there is no reason or occasion for us to infer such motive on the part of the members of <ORG> for denying the promotion to the appellant with reference to the year 1987. Public interest should be the primary consideration of all <ORG>, constituted for selecting candidates, for promotion to the higher posts, but it is all the more important in respect of <ORG>, meant for selecting officers for higher posts in <ORG>. The court cannot encroach over this power, by substituting its own view and opinion. According to us, there is no scope to interfere with the decision of <ORG> of 1987, merely on the ground that adverse remarks, in the Appraisal Report of 1986, which were placed before <ORG> in the year 1987, were later expunged.

So far the direction to fix the appropriate date of promotion of the appellant with reference to <ORG> of 1988 is concerned, the learned Additional Solicitor General took a stand that only a direction to consider the case of the appellant for promotion with effect from 1988 should have been given, instead of directing the respondents to fix the appropriate date of his promotion on basis of selection being made by <ORG>. <ORG> has pointed out, that reason given for not promoting the appellant in the year 1987 was that there was only one Appraisal Report of the appellant in February, 1987, but nor reason has been furnished for ignoring him for the year 1988. As per the guidelines for promotion, the appellant had minimum of three '7's in the preceding five years and two '7's in the preceding three years. In normal course he should have been promoted in the year 1988, in view of the guidelines framed by respondents themselves. It appears, he was ignored for promotion in the year 1988, because of the adverse remarks in the Appraisal Report of the year 1986. No other explanation has been furnished on behalf of the respondents. Accordingly, we direct the respondents to reconsider the case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, in view of the fact that adverse remarks aforesaid have been expunged in the year 1989. The question as to whether the appellant was entitle for one year extension w.e.f. the date of his retirement i.e.31.10.90 has to be armed with reference to the criteria laid down for the same. The age of reticence fixed for the Air Vice Marshal is 55 years. The guidelines for extension of service, say in clear and unambiguous terms that extension will not be granted automatically but will be subject to fulfilling the requisite conditions, to be determined separately by <ORG> in consultation with <ORG>Defence) and <ORG>. On the relevant date the criteria fixed for considering the extension of service beyond the retirement age was :-

"(a) The Officer should be medically fit for the rank in which extension in service is granted.

(b) The performance of officer in the rank should be of a sufficiently high order, as laid down.

(c) The retention of the officer in service should not seriously block promotion of deserving junior officers.

(d)....................

2. It has also been decided that the following gradings should be adopted for the grant of extension of service in various ranks

(a) For Group Captains.......

(b) For Air Commodores.......

(c) For <ORG> Vice Marshals. During the last 5 years. there should be at least 3 gradings of '7' and no grading below '6'.

In addition to the numerical gradings, the pen picture of the officers, i.e. IO, RO and SRO's remarks will also be taken into account."

On behalf of the respondents, it was pointed out that it is an admitted position, that appellant did not have the gradings, which are necessary for extension of service, During the last five years not only he should have at least three gradings of 7'but no grading below '6'(emphasis supplied). Our attention was drawn that his grading for the year 1987 was '5.3', as such below '6'. From the records, it appears that numerical gradings of the appellant from 1983 upto 1988 were as follows:-

1983 1994 1985 1986 1987 1988 ----- --- --- --- --- --- 7 7.4 7.5 7 5.3 7

The appellant, who appeared in person, did not contest the stand of the reasondents that because of his getting '5.3' in the year 1987. no extension could have been given to him, in view of the criteria fixed for consideration ) the extension, to be given to Air Vice Marshal, after his retirement. But according to the appellant, <ORG> should have and now this <ORG> can moderate the grading for the year 1987, in view of the fact that adverse remarks for the year 1986, in view have been expunged. According to us, neither <ORG> not this <ORG> can moderate, the appraisal and the grading of the appellant for a particular year. While exercising the power of judicial review, a <ORG> shall not venture to assess and appraise the merit or the grading of an officer. If the Appraisal Report of the year 1987 giving the appellant '5.3' stands, then according to the criteria fixed, the case of the appellant could not have been considered for extension.

The appellant fairly conceded that unless an extension for a year is granted to him, he could not have been considered for the post of Air Marshal, because no post of Air Marshal was available till 31.10.90. when the appellant retired. Accordingly, taking all facts and circumstances into consideration, we direct the respondents to consider the case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, ignoring the adverse remarks which have already been expunged. Any such decision should be taken within four months from the date of this judgment. The appeals filed on behalf of the appellant as well as <ORG> are disposed of in terms of the order passed above.

I.S.G.

Appeal disposed of.