PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 23/03/1954 BENCH: <NAME>, T.L. VENKATARAMA BENCH: <NAME>, T.L. VENKATARAMA MUKHERJEA, B.K. HASAN, <NAME> CITATION: 1954 AIR 379 1955 SCR 1 CITATOR INFO : R 1955 SC 206 (13) F 1959 SC 906 (10) A 1962 SC 59 (5,10,11) RF 1970 SC1730 (3) RF 1972 SC1401 (9,11) R 1974 SC 878 (14,15) R 1991 SC2176 (32) ACT: Hindu law-Joint family- Whether there is presumption that property held by any member thereof is joint--Existence of some nucleus-Burden of Proving self-acquisition-Property in possession of a family from time immemorial-Presumption whether it is ancestral-Adoption-Rights acquired by adoptive son relating back to date of death of adoptive father- Doctrine of relation back Whether applicable to estate of a collateral. HEADNOTE: It is well-settled that proof of the existence of a Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without. the aid of the joint family property. Held, that on the facts the nucleus was not sufficient to discharge the initial burden which lay on the plaintiff of proving that the acquisitions were made with the aid of joint family properties. Held, further, that even if the burden shifted on the defendants of establishing self acquisitions that had been discharged by proof and the ancestral lands were intact and the income derived therefrom must have been utilized for the maintenance of the members of the family. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a dead. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self-acquisition to establish it. On adoption by the Hindu widow, the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father. The ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in 2 the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. These principles, however, apply only when the claim of the adopted son relates to the estate of the adoptive father. But where succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested. The decision to the contrary in <CITATION> (70 I.A. 232) dissented from. <CITATION> . 1948 Mad. 440 at 447, 448); <CITATION> . 1937 Bom. 708); Venka taramayya v. Seshamma (I.L.R. 1937 Madras 1012); <NAME> v. Varadaraja (I.L.R 1938 Madras 696); <NAME> v. Agarsingii Raisingji (46 I.A. 97 at 107); <NAME> v. <NAME> (4 I.A. 1); <NAME> v. <NAME> (30 I.A. 234)- <CITATION> . 14 Bom. 463); <CITATION> (60 I.A. 242) ; <NAME> v. Lehoo Sambhaji (I.L. R. 1937 Bom 508); <NAME> v. <NAME> (A.I.R. 1948 P.C. 165; 50 Bom. L.R. 682); <NAME> v. <NAME> (12 I.A. 137): <CITATION> . 2 Cal. 293); <NAME> v. <NAME> (I.L.R. 7 Cal. 178); <NAME> v. <NAME>. (3 I. A. 154); <CITATION> (34 I.A. 107); <NAME> v. <NAME> (62 I.A. 161); <NAME> v. <NAME> (2 B.L.R. 103 F.B.) referred to. <CITATION> . 1950 Bombay 510) approved. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 164 of 1952. Appeal from the Judgment and Decree dated the 12th August, 1949, of <ORG> at Bombay in Appeals Nos. 63 and 148 of 1947, from Original Decree, arising out of the Decree dated the 31st July, 1946, of <ORG>, Senior Division, Bijapur, at Bijapur in Special Civil- Suit No. 28 of 1945.

<NAME> <NAME> for the appellant. <NAME> and <NAME> for the respondents.

1954. March 23. The Judgment of the Court was delivered by <NAME>

<NAME> appeal arises out of a suit for partition instituted by the appellant in <ORG>, Bijapur. The relationship of the parties will appear from the following genealogical table:

<NAME> :

: : : : Siddopant Krishnarao alias Sadashiv (d. 1897) (d.1899) m. Rukmini : (D-6) : : Gundo m. Laxmibai (D-5) : : : : : I Shrinivas Devji m. Akkubai (D-4) (adopted son) (adopted) plaintiff d. 6-9-1935. : :

: : : Narayan Raghavendra Gundo D-1 D-2 D-3

<NAME> and <NAME> were members of a joint undivided family. <NAME> died in 1897 leaving behind a widow, <NAME>, who is the sixth defendant in the suit. <NAME> died in 1899 leaving him surviving his son, <NAME>, who died in 1901 leaving behind a widow, <NAME>, who is the fifth defendant. On 16th December, 1901, <NAME> adopted <NAME>, who died on 6th May, 1935, leaving three sons, defendants Nos. 1 to 3, and a widow, <NAME>, the fourth defendant. On 26th April, 1944, <NAME> adopted the plaintiff, and on 29th June, 1944, he instituted the present suit for partition claiming a half share in the family properties.

<NAME> and <NAME> represented one branch of a <NAME> family and were entitled for their share of the Watan lands, to the whole of <ORG> and a half share in S. Nos. 133 and 136 in the village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by <NAME>, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. <NAME> purchased a house under Exhibit D- 36 and lands under Exhibits D-61 and D-64, and constructed two substantial houses. His grandson, <NAME>, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule consisting of houses and house- sites and B Schedule of lands. It is the plaintiff's case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing <NAME>. <NAME> died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on <NAME> as his nearest agnate, and they are set out in Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest <NAME> of those properties, and sues to recover them from his sons. -In the alternative, he claims a half share in them on the ground that they had been blended with the admitted <ORG> family properties.

The defendants denied the truth and validity of the plaintiff's adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by <NAME> were his self-acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the. plaintiff could not by reason of his adoption divest <NAME> of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties.

Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by <NAME> and the houses built by him were his self-acquisitions, as was also the house built by <NAME>. <ORG> held that the plaintiff was entitled to a half share in S. Nos. 639 and 640 in Schedule A on the ground that they belonged to the family as ancestral properties; but <ORG> held that that had not been established. As regards the properties set out in Schedule C, while <ORG> decided that the appellant was entitled to them exclusively under the decision of <ORG> in <CITATION> (1), <ORG> held following a <ORG> decision of that Court in <CITATION> (2), that they belonged exclusively to <NAME>, and that the plaintiff could lay no claim to them. Both the Courts a reed in negativing the contention of the plaintiff that there had been a blending of these properties with the joint family properties. In the result, <ORG> granted a decree in favour of the plaintiff for partition of the admitted <ORG> ,lands, and otherwise dismissed the suit. The present appeal is preferred against this decision.

The first contention that has been urged on behalf of the appellant is that the finding of the <ORG> below that the properties purchased by <NAME> and the houses constructed by him and <NAME> were self-acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income-producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of <NAME> were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self-acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this contention is well-founded, it is necessary to see (1)70 I.A. 232.

(2) I.L.R. 195o Bom. 510.

what the findings of the <ORG> below are regarding the extent of the ancestral properties, the income they were yielding, the amounts that were invested by <NAME> in the purchases and house constructions, and the other resources that were available to him.

On the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49. There is no satisfactory evidence about the income which these lands were yielding at the material period. <NAME>, P.W. 6, and <NAME>, D.W. 1, gave conflicting evidence on the point. But neither of them could have had much of first-hand knowledge, as both of them came into the family by marriage long after the nineties, and were then very young. The lessee who cultivated the lands of <NAME>, who owned, a share in the Watan lands equal to ' that of <NAME> and <NAME>, deposed that the net income was Rs. 30 per annum. On a consideration of the entire evidence, <ORG> put the annual income at Rs. 150. On appeal, the learned Judges of <ORG> were also of the opinion that the income from the lands could not have been considerable. They characterised the oral evidence of P.W. 6 and D.W. I on the point as worthless. They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality. They referred to the fact that both the brothers were obliged to go to the State of Hyderabad for earning their livelihood, and that <NAME> had been obliged to borrow under Exhibits D-89 and D-90 even petty amounts like Rs. 26 and Rs. 10 on onerous terms, and they accordingly concluded that the income from the lands could not have beep sufficient even for maintenance.

Coming next to the acquisitions, on 21st May, 1871, <NAME> purchased under Exhibit D-36 a house for Rs.200 from his mother-in-law. On 11th May,1885, he purchased under Exhibit D-61 S. No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July, 1890, he purchased under Exhibit D- 64 lands bearing S. Nos. 2025 and 2140 for Rs. 2,400. In this suit, we are concerned only with S. No. 2025. Apart from these purchases, he constructed two houses, one on S. Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. D.Ws. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000 and Rs. 25,000, and both the <ORG> have accepted this evidence. It was argued for the appellant that these witnesses had no first-hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, <NAME> built a house on S. Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that <NAME> was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower <ORG> came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the Foundation for the latter, and on the authority of the decision of <ORG> in <CITATION> (1) held -that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case:

" The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may (1) I.L.R. 1948 Mad. 440 at 447, 448 have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: <CITATION> (1), Venkataramayya v. Seshamma(2) Vythianatha v. <NAME> (3)."

It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220, that he acquired properties of the value of Rs. 55,000, and that never- theless, it was observed by <ORG> that " the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property "; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self-acquisition. Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on ,him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family- and yielding no income could not be a nucleus out of which acquisitions' could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. <CITATION> (4), the nucleus of Rs. 7,220 included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500, and as the acquisitions in question were made during a period of (1) I.L.R. 1937 Bom. 708.

(2) I.L.R. 1937 Mad. 1012, (3) I.L.R. 1038 Mad. 696.

(4) I.L.R. 1948 Mad. 440.

16 years it was possible that the joint family income might have contributed therefor. But in the present case, the finding of the <ORG> is that the income from the lands was not sufficient even for the maintenance of the-members, and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on 'him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged. <CITATION> (1), in holding that the father had discharged the burden of proving that the acquisitions were his own, <ORG> observed:

"The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule, to the written statement."

Likewise, in the present -case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of <ORG>, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The contention of the appellant that the findings of the <ORG> below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail.

(1) I.L.R. 1948 Mad. 440.

It was, next contended that certain documents which were tendered in evidence had been wrongly rejected by the Courts below, and that the finding of self-acquisition reached without reference to those documents should not be accepted. These documents are judgments in two suits for maintenance instituted by <NAME> in <ORG> Bijapur, <ORG> of 1903 and C.S. No. 177 of 1941 and in appeals therefrom, C.A. No. 5 of 1905 and <ORG> of 1942 respectively in <ORG>, Bijapur. These documents, were produced before the, trial Court on 17th July, 1946, along with 28 other documents when the hearing was about to commence and were rejected. On appeal, dealing with the complaint of the plaintiff that these documents had been wrongly rejected, <ORG> observed : " Apart from the fact that these documents were produced at a very late stage of the case............ these judgments could have been admitted in evidence only if they could be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence."

The argument of the appellant is that these judgments are admissible under section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be a warded would depend on the extent of the joint family properties, and an issue was actually frame d on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under section 13 of the Evidence Act as assertions of <NAME> that the properties now in. dispute belonged to the joint family.

But there is another difficulty in the way of the reception of this evidence. It was contended by the respondents on the basis of the observations in the judgment of <ORG> already extracted that the real ground of rejection was that the documents were produced late. The order of <ORG> rejecting the document has not been produced before us. But there, is on the record a petition filed by the plaintiff on 25th July, 1946, after the evidence was closed and before arguments were addressed, for the admission of the 32 documents rejected on 17th July, 1946, and therein it is stated that "they have been rejected on the ground of late production." The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidence and the trial would-have to be re-commenced; and the prayer for admission of these documents was accordingly opposed. The Court dismissed the petition. The rejection of the documents was therefore clearly made under Order XIII, rule 2, and there are no grounds for now setting aside that order and reopening the whole case. This ground of objection must therefore fail.

Apart from the Watan lands which are admittedly ancestral, and apart from the purchases made under Exhibits. D-36, D- 61 and D-64 and the houses which we have held to be self- acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half share. These are the sites on which the houses have been constructed.' The contention of the plaintiff is that they are ancestral properties. The trial Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half share in S. Nos. 639 and 640. <ORG> reversed this decision observing generally that the evidence relating to the house sites was not clear, "when they were acquired or by whom", and that in the absence of evidence showing that they formed part of

-the joint family properties, they must be held to be self acquisitions. With respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self-acquisition to establish it. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. S. Nos. 634 and 635 form one block, on which one of the houses has been constructed. The sanads relating to them are Exhibits D-45 and D-46, and they merely recite that the grantee was in occupation of the plots, and that was confirmed. There is reference in them to a previous patta granted by the <ORG>. Exhibits 52 to 55 are pattas showing that the properties comprised therein had been acquired from the <ORG>. If the identity of S. Nos. 634 and 635 with the properties comprised in these documents had been established, the plea that they are not ancestral would have been made out. But that has not been done, and the presumption in favour of their being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. S. Nos. 639, 640 and 641 form one block, on which there is another house standing. There is no title deed for S. No. 639. Exhibit D-47 is the sanad for S. No. 640, and it merely recognises the previous occupation by the grantee, and that is consistent with its character as ancestray property. Exhibit D-48 is the sanad for S. No. 641 and is in the same terms as Exhibits D-45 and D-46. The claim of the plaintiff with reference to all these items must be upheld. We have next S. Nos. 642, 644 and 645, on which <NAME> constructed a house. The relative sanads are respectively Exhibits D-49, D-50 and D-51. Their contents are similar to those of Exhibits D-45 and D-46, and for the same reasons, these plots must be held to belong to the joint family. We have next S. No. 622 on which there stands a house. It is clear from Exhibit D-43 that this was purchased by <NAME> at a <ORG> auction in the year 1909. The plaintiff can lay -no claim to it. Then there is S. No. 643. The oral evidence relating to this is that a family temple stands on it. It cannot be partitioned. In the result, it must be held that the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and 645 are ancestral properties, and that the plaintiff is entitled to a half share therein. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suit.

It remains to deal with the claim of the plaintiff for possession of C Schedule properties on the ground that by adoption he became the preferential heir of <NAME> and is consequently entitled to divest <NAME> and his successors of these properties. The contention of the appellant based on the decision of <ORG> in <CITATION> (1) is that on adoption the adopted son acquires all the rights of an aurasa son, that these rights relate back to the date of the death of the adoptive father, and that in consequence his right to share in the joint family properties and to inherit from the collaterals should both be worked out as from that date. The contention of the respondents based on <CITATION> (2) is that the doctrine of relation back does not extend to properties which are inherited from a collateral. The question thus raised is one of considerable importance, and involves a decision as to the correctness of the law as laid down in <CITATION> (1).

Considering the question on principle, the ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by <NAME> in <NAME> v. <NAME> (3), (1) 70 I.A. 232.

(2) I.L.R. 1950 Bom. 5IO (3) 46 I.A. 97 at 107.

Again it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as <NAME> and <NAME> point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the-line by adoption impossible."

It is on this principle that when a widow succeeds to her husband's estate as heir and then makes an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the same principle that when a son dies unmarried and his mother succeeds to his estate as his heir, and then makes an adoption to h er husband, that adopted son is held entitled to divest her of the estate. (Vide Vellanki Venkata v. <NAME>) and <NAME> v. <NAME>). The application of this principle when the adoption was made to a deceased coparcener raised questions of some difficulty. If a joint family consisted of two brothers A and B, and A died leaving a widow and the properties were taken by survivorship by B, and then W took a boy X in adoption, the question was whether the adopted son could claim a half share in the estate to which A was entitled. It was answered in the affirmative on the ground that his adoption -related back to the date of the death of A. But suppose before W makes an adoption, B dies leaving no son but a widow C and the estate devolves on her, can W thereafter make an adoption so as to confer any rights on X to the estate in the hands of C ? It was held in <NAME> v. Gojarabai(3) that the power to make an adoption so as to confer a right on the adopted son could be exercised only so long as the coparcenary of which the adoptive father was a member subsisted, and that when the last of the coparceners died and the properties thereafter devolved on his (1) 4 I.A. 1 (3) I.L.R. 14 Bom. 463.

(2) 30 I.A. 234.

heir, the coparcenary had ceased to exist, and that therefore W could not adopt so as to divest the estate which had vested in the heir of the last coparcener. In view of the pronouncements of <ORG> in <NAME> v. <NAME>) and <CITATION> (2) that the validity of an adoption did not depend on whether the adopted son could divest an estate which had devolved by inheritance or not, a Fall Bench of <ORG> held in <CITATION> (3) that in such cases the adoption would be valid, but that the estate which had devolved upon the heir could not be divested. <CITATION> (4), <ORG> dissented from this view, and held that the coparcenary must be held to subsist so long as there was in existence a widow of a coparcerier capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re-affirmed in <NAME> v. <NAME>). Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the -estate of his adoptive father. This estate may be definite and ascertained as when he is the 'sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for (1) 46 I.A. 97. (4) 70 I.A. 232.

(2) 6o I.A. 242. (5) A.I.R. 1948 P.C. 165: 50 Bom.L.R. 682. (3) I.L.R. 1937 BOM. 508.

determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but of a collateral. The theory on which this doctrine is based is that there should be no hiatus in, the continuity of the line of the adoptive father. That, by its very nature, can apply only to him and not to his collaterals. In <ORG> the word "collateral" is defined as meaning "descended from the same stock but not in the same line." The reason behind the rule that there should be continuity in line does not warrant its extension to collaterals. Nor is there any authority until we come to the decision in <CITATION> (1), which applied the theory of relation back to the properties inherited from collaterals. With reference to them, the governing principle was that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law, it is thereafter not liable to be divested. The law is thus stated in Mulla's Hindu Law, 11th Edition, at pages 20 and 21 :

"On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was not conceived at the time of the owner's death.

"Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased."' In <NAME> v. <NAME>), the facts were that <NAME>, the widow of one <NAME>, died on 15th June, 1867, and the estate ,devolved on his nephew, <NAME> as reversioner. Subsequently, <NAME>, the widow of a (1) 70 I.A. 232. (2) 12 I.A.137.

brother of <NAME> called <NAME>, took a boy, <NAME>, in adoption, and the suit was by him for half a share in the estate. If his adoption could relate back to the date of death of <NAME>, which was on 28th May, 1861, <NAME> would be entitled to share the inheritance equally with <NAME>. That was the argument put forward in support of his claim. (Vide page 139)., In negativing this contention, Sir <NAME> observed:-

"According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. It is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of <NAME> ; but that, however, would make no difference in the legal position, if the principle of relation back was applicable. One of the cases which <ORG> had in mind was <CITATION> (1), which was relied on in <ORG>. Vide <NAME> v. <NAME>). There, it was hold that an adopted son could not claim the estate of his adoptive father's paternal uncle, which had devolved by inheritance prior to his adoption. In 1888 <NAME> observed in his Tagore Law Lectures on the Law of Adoption:

"As regards collateral succession opening before, adoption, it has been held that an adoption cannot relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption." (Vide pages 413 and

414). The law was thus well settled that when succession to the properties of a person other than an adoptive father was involved, ,the principle applicable was not the rule of relation back but the rule that inheritance once vested could not be divested.

Before examining the decision in <CITATION> (3), it is (1) I.I..R. 2 Cal. 295.

(2) I.L.R. 7 Cal. 178.

(3) 70 I.A. 232.

necessary, to refer to the earlier pronouncements of <ORG> on the question, which formed the basis of that decision. In <NAME> v. <NAME>) the question related to a jivai grant of the village of Piperia which had been made by the Ruler of Gamph to a junior member on condition, that in default of male descendants it should revert to the thakur. The last incumbent, <NAME>, died issueless in October, 1903, leaving him surviving his widow, <NAME>. On 12th March, 1904, she adopted <NAME>. The thakur then sued to recover possession of the village on the ground that the adopted son was not a descendant contemplated by the grant, and that the adoption was invalid, as it would divest him of the village which had vested in him in October, 1903. With reference to the first contention, <ORG> observed that under the Hindu Law an adopted son was as much a descendant as an aurasa son. On the second contention, they held that the principles laid down in <NAME> v. <NAME> and <NAME> <NAME>) as to divesting of joint family properties which had vested in other persons were applicable, and that having regard to the interval between the date of the death of <NAME> and the date of the adoption <NAME> could be treated as a posthumous son. It will be noticed that the thakur did not claim to succeed to the village on the death of <NAME> as his heir but on the ground of reverter under the terms of the grant, and no question of relation back of title with reference to the succession of a collateral's estate was involved.

In <NAME> v. <NAME>), the question arose with reference to an impartible zamindari known as <NAME> in Orissa. The last of its holder, <NAME>, died on 10th December, 1922, unmarried, and by reason of a family custom which excluded females from succeeding to the <ORG>, a collateral <NAME> succeeded to it. On 18th December, 1922, <NAME>, the mother of <NAME>, adopted <NAME> to her husband, <NAME>. The question (1) 46 I.A. 97. (3) 34 I.A. 107.

(2) 3 I.A. 154. (4) 60 1,A, 242, was whether by his adoption <ORG> could divest <ORG> of the estate. It was held by <ORG> that the validity of an adoption did not depend on whether an estate could be divested or not, and that the point to be considered was whether the power to adopt had come -to an end by there having come into existence a son, who had attained the full legal capacity to continue the line. Applying these principles, <ORG> decided that the adoption was valid, and that <ORG> took the estate as the preferential heir. It will be seen that in this case no claim of the adopted son to succeed to a collateral was involved, and no question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, <NAME>, and if the adoption was at all valid, it related back to the date of <NAME>'s death, and enabled <ORG> to divest <NAME>. The point for determination actually was whether by reason of <NAME> having lived for about 20 years, the power of his mother to adopt to her husband had come to an end. It may be noted that but for the special custom which excluded women from inheriting, <NAME> would have succeeded <NAME> as mother, and an adoption by her would divest her of the estate and vest it in <ORG>, and the case would be governed by the decisions in Vellanki Venkata v. Venkatarama(1) and <NAME> v. Bhai Hiraba(2). The only difference between these cases and <CITATION> (3) was that on the death of <NAME> his heir was not <NAME> but <NAME>. This decision might be taken at the most to be an authority for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of A not merely when it has vested in his widow who makes the- adoption but also in any other heir of his. It is no authority for the contention that he is entitled to recover the estate of B which had vested in his heir prior to his adoption to A.

<NAME> v. <NAME>) is a case similar to the one in <CITATION> (3). The property concerned was (1) 4 I. A. T. (3) 60 I.A. 242.

(2) 30 I.A. 234. (4) 62 I.A. 161, an impartible estate. <NAME> who was one of the holders of the estate died, and was succeeded by his son, <NAME>. <NAME> was then given away in adoption, and thereafter Bhimsa@gji, the. brother of <NAME>, succeed ed to the estate. Then the widow of <NAME> made an adoption, and the question was whether the adopted son could divest the estate in the bands of <NAME>. It was held that he could. Here again, there was no question of collateral succession, the point for decision being precisely the same as in <CITATION> (1).

We next come to the decision in <CITATION> (2). The facts of that case were that one <NAME> died in 1905, leaving him surviving his widow, <NAME>, and an undivided son <NAME>. In 1908 <NAME>, the divided brother of <NAME> died, and <NAME> succeeded to his properties as heir. In 1917 <NAME> died unmarried, and as the properties were <ORG> lands, they devolved on a collateral, <NAME>. In 1930 <NAME> adopted <NAME>, and he sued <NAME> to recover possession of the properties as the adopted son of <NAME>. <ORG> had held that as the joint family ceased to exist in 1917 when-<NAME> died, and as the properties had devolved on <NAME> as his heir, the adoption, though valid, could not divest him of those properties. <ORG> held that the coparcenary must be taken to continue so long as there was alive a widow of the deceased coparcener, and that <NAME>'s adoption had the effect of vesting the family estate in <NAME>, even though it had descended on <NAME> as the heir of <NAME>. The decision so far as it relates to joint family properties calls for no comment. When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive, the conclusion must follow that the adoption of <NAME> by <NAME> was valid and operated to vest in him the joint family properties which had devolved on <NAME>. Then, there were the properties 'which <NAME> had inherited from <NAME> , -which had also devolved on <NAME> as his (1) 60 I-A, 242.

(2) 701 I.A. 232, heir. With reference to them, <ORG> observed : " If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been, and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between pro perty which had come to the last male owner from his father and any other property which he may have acquired."

On this reasoning, it was held that <NAME> was entitled also to the properties inherited by <NAME> from <NAME>. <CITATION> (1) must, in our opinion, be taken to decide that the doctrine of relation back will apply not only as regards what was joint family estate but also properties which had devolved by inheritance from a collateral. Otherwise, it is impossible to justify the conclusion that the personal properties of <NAME> which had vested in <NAME> in 1917 would re-vest in <NAME> even though he was adopted only in 1930. The question arise how this decision is to be reconciled with the principle laid down in <NAME> v. <NAME> (2) that an adoption made subsequent to the death of a collateral do-es not divest the inheritance which had vested prior to that date. That that principle was not intended to be departed from is clear from the following observations of Sir <NAME>:

" Neither the present case nor Amarendra's case(3) brings into 'question the rule of law considered in Bhuba neswari <CITATION> (3) (of Kalidas Das v. Krishnachandra Das(4))......... Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance' "

Nor does the discussion in <CITATION> (1) throw much light on this matter. Considerable emphasis is laid on the fact that a ooparcener has only a fluctuating interest in the joint family properties, that it may increase by death and decrease by birth, and that such a qualified (1) 70 I.A.232. (3) 60 I. A. 242.

(2) 12 I.A. 137. (4) 2 B.L.R. 103 F.B.

interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held in coparcenary, such as the estate of a collateral devolving by inheritance. The judgment then refers to the decisions of the <ORG> in <CITATION> (1) and <CITATION> (2), and it is observed that the impartible estates which were concerned therein were treated as separate property and not as joint family property, a conclusion which does not settle the question, because even on the footing that the estates were separate properties, no question of collateral succession was involved in them, the claim under litigation being' in respect of the estate of the adoptive father and covered by the principle already established in <NAME> v. <NAME> (3) and <NAME> v. <NAME> (4). Then follows the conclusion already quoted that no distinction can be drawn between properties which come from the father and properties which come from others. This is to ignore the principle that the doctrine of relation back based on the notion of continuity of line can apply and had been applied, only to the estate of the adoptive father and not of collaterals. We may now turn to <CITATION> . <NAME> (5) wherein the scope of the decision in <CITATION> (6) came up for consideration. There, the material facts were that <NAME> and <NAME> who were members of a joint family effected a partition, and thereafter, <NAME> died in 1901, leaving behind a widow, <NAME>. <NAME> died leaving behind a son, <NAME>, who died in 1918 without male issue, and the property being Watan lands devolved on a collateral called <NAME> as his heir. In 1922 <NAME> adopted <NAME>. The question was whether he was entitled to divest the properties which had become vested in <NAME> as the preferential heir of <NAME>, and the decision was that he was not. It will be noticed that (1)60 I.A. 242. (4) 30 I.A. 234.

(2) 62 I.A. 161. (5) I.L.R. 1950 Bom. 510.

(3) 4 I.A. 1. (6) 70 I.A. 232.

<NAME> to whom the adoption was made had at the time of his death become divided from his brother, and the principles applicable to adoption by a widow of a deceased coparcener had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest <NAME> of the properties which had vested in him in 1918 on the strength of the decision in <CITATION> (1) The contention was that if <NAME> could as adopted son divest the personal properties of <NAME> which had devolved on <NAME> as his preferential heir, <NAME> could also divest the properties which had devolved on <NAME> as the preferential heir of <NAME>. The learned Judges made no secret of the fact that this contention received support from the decision in <CITATION> (1); but they were impressed by the fact that the statement of the law in Bhubaneswari Debi v. <NAME> (2) as to the rights of an adopted son quoad the estate of a collateral had been reaffirmed, and they accordingly held that the decision in <CITATION> (1) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the date of adoption. They distinguished the actual decision on the ground that as <NAME> had vested in him both the ancestral properties as well as the properties inherited from <NAME>, and as admittedly there was a relation back of the rights of <NAME> in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will (1) 70 I.A. 232. (2) 12 1 A. 137.

be analogous to that of a coparcener who has also self- acquisitions, in which case, the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties.

The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in <CITATION> (1), and as it was an authority binding on <ORG>, they could not refuse to follow it, and were obliged to discover a distinction. This <ORG>, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, <CITATION> (1) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity (1) 70 I.A. 232.

or benefit. And if the adoption takes place long after the succession to the collateral had opened-in this case it was 41 years thereafter -and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in <CITATION> (1) in so far as it relates to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay no claim on the ground of relation back. The decision of <ORG> in respect of C, Schedule properties must therefore be affirmed. It was I finally contended that the defendants had blended C Schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of proving blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties. as to show an intention I to abandon their separate claim over it. This is a question of fact on which the <ORG> below have concurrently found against the appellant, and there are no grounds for differing from them.

In the result, the decree of the lower Court will be modified by granting the plaintiff a decree for half the value of the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641'and S. Nos. 642, 644 and 645 as on the date of the suit. Subject to this modification, the decree of the lower Court is confirmed, and; the appeal is dismissed. In the circumstances, the parties will bear their own costs in this appeal.

Appeal dismissed.

(1) 70 I.A. 232.


ORDER <NAME>, J.

Page 0246

1. The above two applications have been made by the plaintiffs under Section 22(4) of Designs Act and under Section 151 CPC with a prayer that the <ORG> should stay the proceedings pending before <NAME> for cancellation of the designs of the plaintiffs initiated at the behest of defendants and also that these proceedings should be transferred before this <ORG> and this <ORG> should hear the proceedings of the cancellation of designs.

2. It is submitted by the plaintiffs that plaintiffs filed a suit for permanent injunction against the defendants alleging infringement of its design nos. 184136 and 184137. The defendant No. 3 in its written statement took defenses as available under Section 19 of the Designs Act. The defendant No. 3 also initiated cancellation proceedings before the learned Controller of Designs against the design nos. 184136 and 184137 in respect of an insecticidal coil and the Controller of Designs framed an issue to the following effect:

2. Are design No. 184136 and 184137 liable to cancellation under Section 19 of The Design Act, 1911 ? OPD ?

3. It is stated that the Controller of Designs proceeded with the proceedings and the proceedings were at last stage. Arguments of both the sides have been heard and orders have been reserved. The plaintiff had also made an application before the Controller for staying the proceedings but Controller did not stay the proceedings finding no merits in the application. He also turned down the request of transferring the proceedings to <ORG> observing that the <ORG> had not issued any direction directing him to transfer the proceedings to it.

4. Counsel for the plaintiffs argued that Section 22(4) of the Designs Act provides that whrerein the ground as available under Section 19 of Designs Act are taken as a defense, the suit or such other proceedings shall be transferred to <ORG> for decision. He states in view of the Section 22(4) , Page 0247 the proceedings before the Controller be transferred to <ORG> and the proceedings be stayed.

5. In reply to the application, it is submitted by the defendants that the plaintiffs can not invoke the jurisdiction of this Court under Section 22(4) of Designs Act as the same was not applicable and the appropriate authority to determine the validity of designs in question was the Controller. The plaintiffs were aware that designs got registered by them were already published and were liable to be cancelled on the ground of prior publication.

6. Section 22 of the Designs Act under which the plaintiffs have sought transfer of proceedings before the Controller to this Court reads as under:

22. Piracy of registered design ' (1) During the existence of copyright in any design it shall not be lawful for any person-

(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied: or

(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or

(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.

(2) If any person acts in contravention of this section, he shall be liable for every contravention -

(a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or

(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly' Provided that the total sum recoverable in respect of any one design under Clause (a) shall not exceed fifty thousand rupees' Provided further that no suit or any other proceeding for relief under this sub-section shall be instituted in any court below the court of District Judge.

(3) In any suit or any other proceeding for relief under Sub-section (2), every ground on which the registration of a design may be cancelled under Section 19 shall be available as a ground of defense.

(4) Notwithstanding anything contained in the second proviso to Sub-section (2), where any ground on which the registration of a design may be cancelled under Section 19 has been availed of as a ground of defense and Sub-section (3) in any suit or other proceedings for relief under Page 0248 Sub-section (2), the suit or such other proceeding shall be transferred by the court, in which the suit or such other proceeding is pending, to <ORG> for decision.

(5) When the court makes a decree in a suit under Sub-section (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.

7. There is no provision under Section 22 for transferring proceedings pending before the Controller to <ORG>. Section 22 (2) provides that a suit or any other proceedings for relief under Sub section 22(2) can be instituted in a Court not below the Court of District Judge. Section 22(3) provides that in proceedings under Section 22(2) , the defendant is free to take all such defenses as are available to him for cancellation of registration of design under Section 19 of the Act. These defenses can be taken by the defendant in the suit filed by a party before the District Judge under Section 22(2) . Section 22(4) provides that where grounds as available under Section 19 are taken as ground of defense, then in such case, suit or other proceedings shall be transferred by the Court in which the suit or other proceedings are pending to <ORG> for decision. It is obvious that the Section has not taken into its ambit the proceedings pending before the Controller under Section 19 of the Act. If the <ORG> wanted that proceedings under Section 19 of the Act pending before the Controller were also to be transferred to <ORG>, nothing prevented <ORG> from making such a provision. The <ORG> in that case would have provided that where a suit is pending before <ORG> and a defense is taken under Section 19 of the Act, the proceedings of cancellation of designs pending before the Controller shall stand transferred to <ORG>. But that was not the intention of <ORG>. Instead <ORG> provided that if in suit or proceedings filed before <ORG> a defense for cancellation of the designs is taken then the proceedings/suit pending before <ORG> shall be transferred to <ORG>. There is a reason behind it. <ORG> is <ORG> against the orders of the Controller. Since <ORG> is <ORG> for deciding whether a design was rightly cancelled by the Controller, the <ORG> thought it proper that the issue of cancellation of designs pending before <ORG> should be decided by <ORG>.

8. In Trade Mark Act, 1958, Section 107 provided that where a suit for infringement of registered trade mark is made and the validity of registration of plaintiff's trade mark is questioned by the defendant and the defendant raises a defense as available under Section 30(1)(d) of the Act questioning the validity of registration, then an application for rectification of register shall be made to <ORG>. Sub Section 2 provides that where an application for rectification of register of trade mark is made to Registrar under Section 46 or Section 47(4) or Section 56 , the Registrar may refer the application at any stage to <ORG>. Thus, wherever <ORG> intended that the application pending before the Registrar/Controller shall be transferred to <ORG>, if in a pending suit a similar issue is raised, the <ORG> categorically provided that such proceedings or application shall be transferred to <ORG>. In Trade mark Act, 1958, <ORG> had jurisdiction to entertain the applications for rectification of register but under Designs Act , <ORG> had no jurisdiction to entertain the application Page 0249 for rectification of register. In Trade Mark Act, 1999, this power has not been conferred on <ORG> i.e. to entertain the applications for rectification of register and corresponding changes were made in the Act.

9. I consider that the plaintiffs cannot take support of Section 22(4) for staying the proceedings pending before the Controller or for withdrawal of proceedings from the Controller to <ORG>. Neither there is a provision of staying of proceedings before Controller as was available under Section 111 of old Trade Mark Act.

10. The proceedings before the Controller are continuing for almost 3 years and are at final stage. While the proceedings before this Court are only at the stage of plaintiff's evidence and the evidence of the plaintiff's is yet to be recorded. The applicant would not be remediless if the order goes against the applicant as there is provision for appeal under the Act against the order of Controller. It is settled law that the provisions of statute must be interpreted to reflect its natural meaning and the interpretation should not be to stretch or to insert words or to enhance its scope. Intention of the <ORG> is very clear in this case.

11. I do not find any provision under the Act to stay the proceedings before the Controller or to withdraw the proceedings from Controller to this Court. Neither I consider it appropriate to take away the powers of Controller of deciding the proceedings before it.

12. The applications are hereby dismissed.


<CITATION> .

(1) In these letters patent appeals (L.P.A. Nos. 27, 64, 65 and 66 of 1970) the main question is whether the retired members of <ORG> residing in India are entitled to be paid their pensions in pound sterling in the United Kingdom. The decision depends on the construction of the relevant provisions of law. The guarantee that the conditions of their service would be the same as they were at the commencement of the Constitution is contained in Article 314 of the Constitution which is as follows: "EXCEPTas otherwise expressly provided by this Constitution, every person who having been appointed by the Secretary of <ORG> or Secretary of <ORG> in <ORG> to a civil service of the <ORG> in India continues on and after the commencement of this Constitution to serve under <ORG> or of a <ORG> shall be entitled to receive from <ORG> and the Government of the <ORG>, which he is from time to time serving, the same conditions, of service as respects remuneration, leave and pensions and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement."

(2) <NAME>, <NAME> and <NAME> who had been "appointed by the Secretary of <ORG>" within the meaning of Article 314 to the Indian Civil Service retired after the commencement of the Constitution. <NAME> and <NAME> retired after serving the full period of their service while Shri <NAME> chose to retire after serving over 25 years but not for the full period of service. Their entitlement to pension (called "annuity" being paid annually) is governed primarily by Articles 561, 983 and 984 of the Civil Service Regulations as they stood at the commencement of the Constitution. They are, therefore, reproduced below:-

"561.An officer who has been twenty-five years in service counting from the date of his covenant or from the date of the dispatch of the Secretary of <ORG> announcing his appointment (whichever may have been earlier); and who has rendered twenty-one years' active service is entitled, on his resignation of service being accepted to an annuity of Rs-10,666.10.8. The annuity is subject to a minimum of 1,000"

"983(A)When payment of annuities or gratuities is taken at <ORG>, it may be taken at the option of the recipient either in rupees converted into sterling at such rate of exchange as the Secretary of <ORG> in <ORG> may by order prescribe or at the fixed sterling minimum.

(B)When payment is taken in India, it may be taken at the option of the recipient either in rupees or at the fixed sterling minimum converted into rupees at such rate of exchange as the Secretary of <ORG> in Council may by order prescribe; provided that annuitants of the following classes may, at their option, receive the fixed sterling minimum converted into rupees at the rate of ls.4d to the rupes, so long as they continue to reside in India:-

(I)Annuitants resident in India who were in receipt of annuities converted at this rate on the 1st February 1921.

(II)Annuitants of Indian domicile who were, on the 1st February, 1921, temporarily drawing their annuities in sterling. (III)Annuitants of Indian domicile who were serving in <ORG> on the 1st February 1921."

"984.Transfer from <ORG> to an Indian treasury, and vice versa is permitted twice only."

(3) <NAME> is also governed by the Premature Retirement Rules, 1937, the relevant part of paragraphs 2 and 3 of the Second Schedule of which are as follows:-

"2.Pensions expressed in rupees in this schedule shall be converted at the minimum rate of ls.9d. per rupee, subject to the conditions stated in Article 936 of the Civil Service Regulations, or in any rule which may be constituted therefore.

THEconversion into rupees of pension expressed in sterling in this schedule shall be governed by the provisions of Article 933 A or 983, as the case may be, of the Civil Service Regulations, or of any rule that may be constituted for either of the said Articles.

3.The pension admissible to an officer who is permitted to retire under these rules shall be as follows:- (A)To an officer of <ORG>, N/21 x 1,000, subject to a maximum of 1000 a year: Provided that whenever the sum of Rs. 10,666.10.8 exceeds 1,000 in value that sum shall be substituted for 1,000 in both places where it occurs in this clause, and the pension shall be recalculated accordingly.

(4) In exercise of the power conferred on him by Csr 983, the Secretary of <ORG> fixed the rate of exchange for the purposes of Csr 983 at ls.6d. per rupee on 25-2-1928. This rate has never been revised since then. With the transfer of power on 15th August 1947 <ORG> came to an end. Most of the non-Indian members thereof left India. Under rule 3 of the Indian Administrative <ORG> (Recruitment) Rules, 1954 made under the All India <ORG>s Act , 1951, the initial constitution of the <ORG> included the former members of <ORG> not permanently allotted to the Judiciary including <NAME> and <NAME>. According to Article 312 of the Constitution and the All India <ORG>s Act , 1951, the Indian Administrative <ORG> is "common to the <ORG> and the <ORG>s". Under the Indian Administrative <ORG> (Cadre) Rules, 1954, a cadre of the Indian Administrative <ORG> is constituted for each <ORG> or group of <ORG>s. All members of the Indian Administrative <ORG> in the country are divided into these cadres. The strength of the cadre of each <ORG> is determined under the Indian Administrative <ORG> (Fixation of Cadre Strength) Regulations, 1955. As pointed out in <CITATION> , 2nd (1969) Delhi 1214(1) and in <CITATION> , no member of the Indian Administrative <ORG> could be allotted either to the <ORG> territory or to the <ORG> of India as such without belonging to a <ORG> cadre. Consequently, Shri <NAME> was allotted to the <ORG> of Punjab and <NAME> to the <ORG> of Uttar Pradesh. <NAME> was a judicial officer of the <ORG> of Punjab. Each of these persons received their pay and were to receive their pensions from their respective <ORG> Governments and not from the <ORG> of India.

(5) Civil Service Regulations 561 and 983 were amended on 29-6-1957 with effect from 12-6-1956 by <ORG> by notification No. F 7(19) EV/57 deleting the provision regarding payment of pension in pound sterling in view of the changed circumstances and fixing the amount of pension in rupees at Rs. 13,333.33 in terms of the rate of exchange of ls.6d. to a rupee fixed in 1928 as stated above.

(6) On 6-6-1966 the rupee was devalued in terms of pounds and some of the Indian members of the former <ORG> residing in India conceived the idea of benefiting thereby. Demands were made by <NAME> on <ORG> and by <NAME> and <NAME> on <ORG> for payment of their pensions in sterling in the United Kingdom. All these demands were rejected, though after some indecision in the case of <NAME> by the <ORG>. Writ petitions were thereupon filed by these three members against their respective <ORG>s and <ORG> was also joined as a party. They alleged that the amendment of 1957 was ultra vires Article 314 of the Constitution and prayed that this Court should order the respective <ORG> and <ORG> to pay to them their pensions at the fixed minimum of , in the United Kingdom. The respondants defended the writ petitions and averred that the amendment of 1957 was valid and that the petitioners were not entitled to be paid their pensions in pounds in the United Kingdom.

(7) <NAME> was of the view on a construction of the Civil Service Regulations 561 and 983 that <NAME> and <NAME> were entitled to be paid their pensions in the United Kingdom in pounds, and, therefore, allowed their writ petitions. The case of <NAME> was, however, distinguished on the ground that he joined <ORG> and thereupon lost his entitlement to be paid his pension in pound sterling in the United Kingdom. His writ petition was, therefore, dismissed. Hence the letters patent appeals by <ORG> and the States of Punjab and Uttar Pradesh against <NAME> and <NAME>. <NAME> has also filed his appeal against <ORG> and the State of Punjab. As stated above, in fact, every member of the former <ORG> (including Shri <NAME>) who was not permanently allotted to the Judiciary and who chose to serve <ORG> after 15-8-1947 became a member of <ORG>. Article 312(1) expressly states that:- "PARLIAMENTmay by law provide for the creation of one or more all-India services common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service."

It follows that the All India Services Act , 1951 and the Rules and Regulations made there under which govern <NAME> and <NAME> could not prevail against Article 314 of the Constitution which occurs in the said chapter. With great respect, therefore, we are unable to agree with the learned Judge that Shri <NAME>'s case is in any way different from those of <NAME> and <NAME>.

(8) The claim for payment of pensions in pounds in <ORG> raises the following three questions for consideration before it can succeed, namely:-

(1)Whether the entitlement to the payment of sterling in the United Kingdom is such "as changed circumstances may permit" within the meaning of Article 314 of the Constitution ?

(2)Was there any right at all to the payment of pension in pounds in the United Kingdom immediately prior to the commencement of the Constitution ? and (3) If so, was such right enforceable ?

(9) Question No. 1 Article 314 guarantees the continuance, on and after the commencement of the Constitution, of (1)the same conditions of service as respects remuneration, leave and pension; and (2)the same rights as respects disciplinary matters or rights as similar thereto.

Both of them are to continue "as changed circumstances" may permit. As we read Article 314 , we do not see any reason to restrict the qualification of "changed circumstances" to apply only to the "same right as respects disciplinary matters or rights as similar thereto" and not to apply to the "same conditions of service as respects remuneration, leave and pension". For, both these parts of the guarantee given by Article 314 have to be necessarily subject to the inevitable changes brought about by the transfer of power and the Constitution. No difference can be made between the two in this respect. We are, therefore, in respectful disagreement with the contrary view expressed in <CITATION> , . A learned commentator makes the following observation regarding the <ORG> decision:- "THISconstruction of Article 314 has not been disturbed by <ORG> on appeal." (<NAME>'s Commentary on the Constitution of India, Fifth Edition, Volume 5, page 335).

We see, however, nothing in the <ORG> decision in the <CITATION> , in an appeal against the Patna decision approving in any way the above view of <ORG>. On the contrary, in <CITATION> , the <ORG> has expressly treated both these parts of the guarantee as being on the same footing in respect of the "changed circumstances". At page 445 in <NAME> case, a reference was made by the <ORG> to their previous decision in Bakshi's(3) case and it was observed :- "THATcase is an authority for the proposition that where any rule is framed, which is inconsistent with the guarantee contained in Article 314 with respect to remuneration, leave and pension, that rule would be bad. In the present case, we are concerned with another part of Article 314 , namely, "the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement The same principle will apply to this part of Article 314 also."

At page 449 in <NAME> case their Lordships further observed:- "BUTArticle 314 does not speak of the protection which members of <ORG> had on August 13, 1947, it speaks of protection which they had immediately before the commencement of the Constitution, i.e., on January 25, 1950, and that brings us to a consideration of the changes that took place between 1947 and 1950 after the transfer of power on August 15,1947." Their Lordships then proceed to consider "the effect of the transfer of power" as also the effect of the Constitution. The decision in <NAME> case,(5) therefore, shows that both the parts of the guarantee in Article 314 are subject to "changed circumstances". There is no warrant, therefore, for saying that it is only the latter part of the guarantee which is so subject and that the former part of the guarantee regarding "conditions of service as respects remuneration, leave and pension" is not subject to "changed circumstances". In these cases it was not contended that these conditions of service are not subject to changed circumstances at all. What we have said above is only to record our awareness of the Patna view and the commentary. We must, therefore, know the precise meaning of the expression "changed circumstances". In <NAME> case, <NAME> defined the said expression as follows at page 442 of the report :- "WHATthe words 'changed circumstances' mean is the change in circumstances due to transfer of power in August 1947 and the coming into force of the Constitution in January 1950, and no more." Civil Service Regulations 561 and 983 were promulgated long ago in the nineteenth century when there was hardly any Indian in <ORG> about which it was cynically said that it was neither Indian nor civil nor a service. This is why C.S.R. 983 (a) provides for payment of annuities or gratuities to be taken at <ORG>". The situation was reversed when India became independent with the result that there was hardly any non-Indian left in <ORG> immediately before the commencement of the Constitution. As stayed above, <ORG> itself ceased to exist and the members of that Service who had been appointed by the Secretary of <ORG> lost their jobs. After Independence, they were appointed to <ORG> by <ORG> and allotted to different <ORG>s. This was a traumatic change. The payment of the pension in sterling at <ORG>" became an anachronism for several reasons. Firstly, when England ruled India the home of the empire was in London and the expression "Home Treasury" had a meaning. After the Independence, <ORG> could not be <ORG>" for India and this expression became meaningless. The treasury for payment of pensions to <NAME>, <NAME> and <NAME> was not even the Indian Treasury but the treasury of the <ORG> to which each of them was allotted. Secondly, under the British rule, <ORG> was the master of the foreign exchange. As a rule, the pension of a person who has served in India should be payable in the Indian currency in India. But this rule was perverted for the benefit of the then members of <ORG> to enable them to take their pension in the United Kingdom because most of them were English-men and returned to England after retirement. Almost the first step taken by the interim <ORG> even prior to the transfer of power on 15-8-47 was to enact the Foreign Exchange Regulation Act which came into force on 25-3-1947 which made it impossible for the pension to be paid in sterling in the United Kingdom to the members of <ORG> residing in India as will appear later when we examine the provisions of the said Act. The change in the circumstances is so drastic and so total that we find it difficult to persuade ourselves that any member of <ORG> residing in India should, so late in the day, be allowed to claim payment of his pension in the United Kingdom. We cannot conceive of any independent country in the world which would pay pension to any member of its own services in a foreign currency in a foreign country. It is not only never done because it would be an unjustifiable expenditure of foreign exchange but would also be regarded as humiliating to the self-respect of a national Government. Thirdly, under C.S.R. 983 (a) payment of pension in sterling can be taken only "at <ORG>" implying thereby that the payment is made by the Government which had appointed the payees so that both for the payer and the payee <ORG> was in the United Kingdom. If possible, C.S.R. 983(a) should certainly be read mutates mutants. For instance, at page 442 of the <ORG> decision in <CITATION> (5) referred to above, <NAME>, suggested that <ORG> should be substituted in place of the Secretary of <ORG> in the changed circumstances. If C.S.R.983(a) could be made applicable to the postindependent India by this method, it would still continue to be operative. But if we are to do so, we will have to substitute the treasury of the <ORG> Government concerned in place of <ORG>. No <ORG> Government in India possesses any foreign exchange which is a central subject. It cannot, therefore, pay any pension in sterling in the United Kingdom. It was suggested by <NAME> that such payment could be made to him through the High Commissioner for India in London. But no <ORG> Government in India has any control over the High Commissioner and the authority liable to pay pension is the concerned <ORG> Government and not <ORG>. Fourthly, the whole difference between the circumstances prior to Independence and after the Independence of India is the change of masters. While the British could pay pension in pounds to their employees as pounds was their currency, <ORG> can pay to its employees only in rupees which is the Indian currency. The members of <ORG> themselves realised this and, therefore, not a single instance has been brought to our notice of any of them claiming to be paid in pounds in the United Kingdom while he was residing in India after Independence. Fifthly, the devaluation of rupee which made these members of the former <ORG> in India make this claim has really nothing to do with the amount of payment received by them. Devaluation has affected the value of rupee only vis-a-vis the pound for the purpose of foreign exchange. It has no relevance inside the country. Payment of pension after Independence is a domestic matter for <ORG> and its employees in India. It is a startling proposition to advance that any civil servant should be paid in foreign currency in a foreign country merely to get the benefit of devaluation of the home currency. The fluctuations in the rate of exchange are concerned only with the international trade and payments and not with domestic trade and payments. Sixthly, what would be regarded as "changed circumstances" making it impossible to continue a' particular right or condition of service would have to be decided according to the nature of the right and the context in which it is sought to be exercised. The object of the payment of pension is to assure a civil servant of remuneration for past services after retirement. Every civil servant in this respect is similarly situated. If no other civil servant is entitled to get his pension in a foreign currency to get the benefit of devaluation of the home currency, there is no reason why after Independence only the members of <ORG> should be able to do so. In <ORG> of Madras'. <NAME> the question was whether India could be regarded as a "British possession" within the meaning of Fugitive Offenders Act, 1881 of U.K. so as to make that part of the said Act applicable to India. At page 287 the <ORG> observed as follows: "IT is plain from the above provisions of the Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter-communication were treated for purposes of the Fugitive Offenders Act as one integrated territory. ... The situation completely changed when India became <ORG>. After the achievement of Independence and the coming into force of the new Constitution by no stretch of imagination could India be describ- ed as a British possession."

Just as India could not be regarded as a "British possession" after Independence, similarly a member of <ORG> cannot be paid his pension at <ORG> in the United Kingdom thereafter on the reasoning of this decision. The doctrine that a civil servant holds his office during the pleasure of the sovereign was imported into India from English law. <CITATION> (1947) F.C.R.89(7), the right of a civil servant to recover arrears of pay was resisted on the ground that in view of the prerogative of the <ORG> no servant of the <ORG> could maintain an action against the <ORG> to recover arrears of pay. It was held, however, that this prerogative must be deemed to have been abandoned in India when the contrary provision in section 60 of the Civil Procedure Code was enacted. This decision was followed by <ORG> in <CITATION> , (1954) Scr 786 at 791(8) Lastly, the claimants can take the pension in pounds in the United Kingdom only "at <ORG>." Even if this claim is conceded, it is incapable of being enforced as <ORG> cannot be told by a State Government in India to pay it and will not pay it. Thus the claim may exist in theory but cannot be enforced as there is <ORG> from which it can be paid. The members of <ORG> in India thus cannot recover the "pound sterling" as there is <ORG> just as Shy lock the Jew in "Merchant of Venice" could not recover his "pound of flesh without" shedding a drop of blood. We are, therefore, of the view that even if it is assumed that these persons could claim to be paid their pensions in pounds in the United Kingdom immediately prior to the transfer of power, the change of circumstances brought about by the transfer of power and the Constitution of India made it impossible for such claim to be put into practice.

(10) Question No. 2 Even if it is assumed for the sake of argument that "the changed circumstances" do not come in the way of the assertion of this claim, we must consider whether such a right to the payment of pension in pounds in the United Kingdom at all existed immediately prior to the commencement of the Constitution. What is the nature of the right claimed ? The entitlement or eligibility to pension is created by C.S.R. 561 to an "annuity of Rs. 10,666.10.8" (subsequently increased to Rs. 13,333.33). The right to payment is in rupees only. The last sentence of C.S.R. 561 is "the annuity is subject to a minimum of 1000". What does this mean ? Its object is to guarantee that the amount of pension will not fall below 1000 at any time. Formerly when currencies were on gold standard, such guarantees used to be expressed in what used to be known as "good clauses". In rule 151 of Dicey and Morris on "Conflict of Laws", Eighth Edition, page 867, the purpose of such a gold clause is stated as follows"- "WHEREEnglish law is the proper law of a contract, any reference therein to payment in gold of a specified standard of weight and fineness is presumed to be a gold value clause, i.e. a definition of the means by which the amount of the indebtedness is to be measured and ascertained, not a definition of the means by which the debt is to be discharged, and to give rise to an obligation to pay in legal tender of the stipulated currency an amount which, on the day of payment, will be sufficient to buy gold coins corresponding to the nominal amount of the debt. It is not an obligation to pay gold coins."

Learned authors further observed at page 873:- "INSTEADof choosing the value of gold coin as the yardstick for the purpose of measuring the debtor's obligation........ (parties may agree) for the payment of a sum of money linked with the purchasing power of a given currency. .... .All these clauses are of the same legal nature as gold value clauses. There also exist clauses defining the amount of units of a given currency owed by the debtor by reference to another currency." In <ORG> of New York v. <NAME>, 307 U.S. 247(9), the bonds were payable at the option of the holder in one or more countries in the currencies of those countries. At page 255, <ORG> remarked as follows about the object of such a clause:- "THISdebtor's obligation was a monetary obligation. The foreign currencies promised were not bartered for as commodities, but their function was that of money to be paid in countries in which they were legal tender". At page 257 it was further observed that:- "THEadmitted purpose of the multiple currency provision supplementing the gold clause was the same as that of the gold clause itself, that is, to afford creditors of United States debtors on domestic money obligations contractual protection against possible depreciation of United States money."

It is thus clear that the specification of the minimum of the pension at 1000 was by way of such guarantee against fluctuations of the value of money. The currency of payment was rupees and not pounds. The latter was used only as a standard of guarantee. The obligation to pay pension was thus created in terms of rupees and not in terms of pounds. C.S.R. 983 does not create any right. It pre-supposes the right created by C.S.R. 561. It provides for payment of the pension either at <ORG> in London or in India. Who was to decide where the pension was to be paid in a particular case ? The members of <ORG> while serving in India must have received their pay from the concerned treasury in India while those members of <ORG> serving in England must be receiving their pay from <ORG>. C.S.R. 984 provides that "transfer from <ORG> to an Indian treasury and vice versa, is per- mitted twice only." It was for the <ORG> to permit the transfer of the account of a pensioner from the United Kingdom to India and from India to the United Kingdom. This shows that the pensioner himself did not have a right to change the place of the payment of the pension. C.S.R. 984 thus destroys for good any claim to such a right. C.S.R. 893 has to be read in the context of C.S.R. 561 and C.S.R. 984. So read, it means that when a certain pensioner is receiving his pension at <ORG>, he may be paid at his option either in rupees or in pound sterling. C.S.R. 983 (a) opens with the word "when". This word shows that the question who is to receive the pension at <ORG> has been already decided under C.S.R. 561 and C.S.R. 984. It is only when the <ORG> has permitted a person to receive his pension at <ORG> that he can receive it in sterling. It would be unbelievable that the <ORG> could have permitted an Indian member of <ORG> residing in India to transfer the place of payment of his pension from India to <ORG> in the United Kingdom. At any rate, if such payment of sterling in London depended on the discretion of the <ORG>, then there was no enforceable right in the pensioner to compel the <ORG> to do so. In construing paragraphs 2 and 3 of the Second Schedule to the Premature Retirement Rules, 1937, a distinction must be drawn between the money in which again a debt or an obligation is expressed and the money in which it is made payable. In paragraph 3(a) the pension is expressed in pound sterling. But these provisions are silent as to the money or currency in which the pension is payable. The conversion into rupees of pension expressed in sterling under paragraph 2 is governed by the provisions of Article 933A or 983, as the case may be, of the Civil Service Regulations. Article 933A did not apply to <ORG> at all. Therefore, members of <ORG> were governed by Article 983 only which provides for payment of pension in India only in rupees. On the construction of the above provisions, therefore, we are of the view that ordinarily members of <ORG> resident in England drew their pensions from <ORG> and the members of <ORG> resident in India drew their pensions from the concerned State treasury in India. The latter did not have any right to compel the <ORG> to transfer the place of payment of their pensions from India to the United Kingdom. Such a transfer could be permitted by the <ORG> at their discretion. There was thus no enforceable right in this respect vested in the members of <ORG> in India immediately prior to the commencement of the Constitution. No right thus existed which could be protected by Article 314 of the Constitution.

(11) Question No. 3 Even if it is assumed for the sake of argument that such a right existed immediately prior to the commencement of the Constitution, it would be seen that it was not enforceable. Firstly, under section 4 of the Pensions' Act, 1871, no civil court could entertain a suit relating to any pension or grant of money conferred by the <ORG>, whatever may have been the nature of the payment, claim or right for which such pension may have been substituted. <ORG> of the Punjab and Allahabad were not entitled to issue prerogative writs prior to the commencement of the Constitution. <NAME>, <NAME> and <NAME> could not, therefore, enforce their claim immediately prior to the commencement of the Constitution. Further, a civil court could not issue an injunction against the <ORG> in view of section 56(d) of the former Specific Relief Act directing it to pay pension in pound sterling particularly when such an injunction could not be enforced in view of the following provisions of the Foreign Exchange Regulation Act , 1947. A state <ORG> could not buy or borrow foreign exchange from anyone except an authorised dealer and except with the previous general or special permission of <ORG> in view of section 4(1) of the Foreign Exchange Regulation Act, 1947. Even if it wished, therefore, a State <ORG> could not acquire foreign exchange for payment of pension. It is to be noted, however, that <NAME>, <NAME> and <NAME> have not asked for payment of foreign exchange to them in India as they realised that this is impossible. What they asked for was that such payments should be made to them at <ORG> in the United Kingdom. This is prohibited by section 5(1)(a) of the Foreign Exchange Regulation Act, 1947 which says that no person in India shall make any payment to or for the credit of any person resident outside India except with the permission of <ORG>. The payment of pension in pound sterling can be made only to some specified persons and this is prohibited by section 5(1)(a) . Similarly, such a specified person would be further prohibited from transmitting the said foreign exchange to <NAME>, <NAME> and <NAME> in India by section 5(1)(c) . The import of currency notes or bank notes of pound sterling into India is also prohibited by section 8 of the said Act. Even if it is assumed for the sake of argument that the concerned State <ORG> was liable to pay pension in pound sterling, an implied condition was attached to this debt or obligation by sub-section (2) of section 21 of the said Act requiring permission of <ORG> or of the Central <ORG> to pay such debt or obligation in pound sterling. Clauses (a) and (b) of sub-section (3) of section 21 further provide that such permission is necessary even for the enforcement of any judgment or order for the payment of any such foreign exchange. The grant of such permission by <ORG> or the Central <ORG> is to be governed by relevant considerations which are embodied in the preamble to the Act, namely. "the economic and financial interests of India." It is certainly not in the economic or financial interests of India to encourage a resident of India to seek adventitious profit due to devaluation. No <ORG>, therefore, could have ordered the <ORG> of India or <ORG> immediately prior to the Constitution to grant such permission to the concerned State <ORG>. In fact sub-section (2) of section 20 of the said Act provides that:- "NOTHINGin this Act relating to the payment of any price or sum by the Central <ORG> shall be construed as requiring the Central <ORG> to pay that price or sum otherwise than in Indian currency or otherwise than in Tndia."

The principles of Private International Law or Conflict of Laws which are applicable to India on the ground of "justice, equity and good conscience" are also the same. Rules 154(1) and 155(2) in Dicey and Morris on "Conflict of Laws" referred to above are as follows:- "154.(1) An English court cannot give judgment for the payment of an amount in foreign currency. A debt which is expressed and damages which are calculated in a foreign currency must therefore be converted into sterling for the purposes of litigation in England, irrespective of the place at which they are payable and irrespective of the law governing the substance of the obligation." "155. (2) Whatever is their proper law and wherever they are to be performed, 'exchange contracts' are unenforceable if they involve the currency of any Member of <ORG> and if they are contrary to the exchange control regulations of any Member maintained or imposed consistently with <ORG> Agreement, (semble) whatever is the object for which these regulations are used."

(12) An action for specific performance of the payment of foreign currency could not be contemplated immediately prior to the commencement of the Constitution inasmuch as, pointed out by <ORG> in <ORG>), case, referred to above, such foreign currency is referred to as money and not as a commodity. The suit would not, therefore, be for the delivery of specific moveable, property but for the payment of money. A suit for the payment of money is not a suit for specific performance. A possible exception to Dicey's rule 154 is made by the decision of <ORG> in <ORG> v. <ORG>, (1921) 38 Times Law Report 65(10). But in that case, their Lordships were of the view that a decree for declaration should be granted even without further relief being claimed because in the particular circumstances of that case further relief could be had by separate actions thereafter. But' a declaration that a State Government was bound to pay pound sterling in the United Kingdom to the members of <ORG> in India could not have been granted by a court in India inasmuch as it would have been futile. India is, by agreement, a party to the Foreign Judgments (Reciprocal Enforcement) Act, 1933. But no judgment will be ordered to be registered there under if it could not be enforced by execution in the country of the original court. A decree for declaration is not executable and could not, therefore, be registered under it. Similarly, a judgment of a superior court in India can be registered under the said Act for being enforced in England if there is payable under such judgment a sum of money. Nothing is payable on a decree for declaration and, therefore, such a decree could not be registered there under. It follows, therefore, that a declaratory judgment in India could not have been enforced in England (more so because of the Sovereign Immunity of Governments of India, Uttar Pradesh or Punjab against being sued in the United Kingdom) and under rule 154(1) of Dicey's conflict of Laws an Indian court could not have passed a decree for payment of pension in pound sterling in India. The same principle is also codified in the provisions of the Foreign Exchange Regulation Act , 1947.

(13) It is a well known rule of construction that if a statute or a statutory provision is capable of two meanings, one making it unconstitutional or illegal and the other conforming to the law and the Constitution, then the latter is to be preferred. To construe C.S.R. 983 as giving a right to a member of <ORG> in India to demand payment of pound sterling in England is to bring it into conflict with the Foreign Exchange Regulation Act , 1947. This is an additional reason why C.S.R. 983 should be construed to imply an arrangement of payment only after the necessary permission for such payment has been granted by the authority concerned. Even if the original meaning of C.S.R. 983 was to give a right to the recipient, its meaning after the enactment of Foreign Exchange Regulation Act , 1947 on 25-3-1947 would alter if it is to continue to be legal there-after. We find, therefore, that the right, if any, for the payment of pension in pound sterling in England was not enforceable immediately prior to the Constitution.

(14) Our conclusions about the claim for payment of pension in pound sterling in the United Kingdom made by these members of <ORG> are, therefore, as follows:-

(1)Such a right, if it ever existed, did not survive the "changed circumstances" brought about by the transfer of power and the Constitution of India.

(2)On a construction of the Civil Service Regulations 561, 983 and 984 and paragraphs 2 and 3 of the Premature Retirement Rules, 1937 as they stood immediately prior to the Constitution, no such right existed at all.

(3)Even if it is assumed that such a right existed, even prior to the commencement of the Constitution it was unenforceable in the context of the domestic law including the Foreign Exchange Regulation Act , 1947 and the principles of private international law.

(4)The amendment of 1957 in omitting reference to pound sterling in payment of pension therefore, recognised only the legal position as it existed immediately prior to the Constitution. It was not. therefore, ultra vires Article 314.

(5)in view of our finding on No. (4) above, the writ petitions of <NAME>, <NAME> and <NAME> were unduly delayed inasmuch as the protest, if any, by way of writ petitions should have been made by them in 1957 itself when the amendment was effected. These petitions were liable to be dismissed, therefore, on the ground of delay also.

(15) The Letters Patent Appeals 64 of 1970 by <ORG> against <NAME>, 65 of 1970 by <ORG> against <NAME>, 66 of 1970 by the State of Punjab against <NAME> are, therefore, allowed with costs and the orders appealed against are set aside. The L.P.A. No. 27 of 1970 by <NAME> against <ORG> and the State of Punjab is dismissed with costs and the order appealed against is maintained though for different reasons.