PETITIONER: COMMISSIONER OF WEALTH TAX, <NAME> Vs. RESPONDENT: KIRPASHANKAR DAYASHANKAR WORAH DATE OF JUDGMENT29/07/1971 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. GROVER, A.N. CITATION: 1971 AIR 2463 1971 SCR 968 ACT: Wealth Tax Act , s. 21(1) & (4)-Liability of trustee to be assessed to wealth tax-Scope of s. 21(4) . HEADNOTE: The respondent, by means of a trust-deed, transferred certain properties described in the deed unto himself as a trustee for making provision for the maintenance of himself and his wife, for the maintenance, education and marriage expenses of his unmarried daughters, and for the maintenance and education expenses of his minor sons. For the assessment years 1957 to 1961 the <ORG> assessed the respondent to weaith-tax in respect of the trust properties as a trustee under s. 21 of the Wealth Tax Act 1957. The respondent contended that: (1) Since, as a trustee he was only holding the properties for the benefit of the beneficiaries and not on behalf of the, beneficiaries as laid down in the section he was not assessable to wealth- tax. and (2) as the share of each of the beneficiaries was not indeterminate, he should not be taxed at the maximum rate. <ORG> in reference held that respondent was not assessable to wealth tax. HELD:In appeal to this Court, S.21(1) of the Act specifically refers to trustees. The <ORG> is competent, in the absence of any restrictions placed on it by the Constitution, to give its own meaning to the words used by it in a statute. In the Wealth Tax Act , <ORG>, while enacting s. 21(1) & (2) of the Act, pro- ceeded on the basis that for the purpose of that Act a trustee is holding the trust property an behalf of beneficiaries. The mere fact that this conception does not accord with the provisions of the Trust Act does not invalidate the section. If the construction contended for on behalf of the respondent is accepted then a part of the section would become otiose. While a taxing provision must be strictly construed by courts and the benefit of any ambiguity must to go the assessee, if the intention of the <ORG> is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground for treating any part of a provision as otiose. [973B-F] Therefore a trustee is assessable to wealth tax under the Act even as it then stood. [975B] suhashini <CITATION> , 46 I.T.R. 953, and <CITATION> of income-tax, Bombay, 70 I.T.R. 600, approved. <CITATION> , 44 I.T.R. 172 ( <CITATION> , 77 I.T.R. 350 (S.C.), The Commissioner of Income-tax v. Manila Bharti,  Supp. 2 S.C.R. 902 and <CITATION> , 57 I.T.R. 321 (S.C.), referred to. 969 <CITATION> ., 33 I.T.R. 472 (S.C.), explained. (2)In the present case, on the relevant dates, the settlor as well as his wife were alive and had a right to be maintained out of the trust properties and they had also a right of residence in a part of the trust property, and two of the sons of the settLor had a right to be maintained and educated. Therefore the shares of the beneficiaries were indeterminate, and hence, the trustee had to be assessed under s. 21(4) of the Act as it then stood. [975H; 976A-B] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1478 to 1481 of 1967.

Appeals from the judgment and order dated April 13, 1966 of <ORG> in Misc. Judicial Cases Nos. 552 to 555 of 1964.

<NAME> Solicitor-General, <NAME>, <NAME> and <NAME>, for the appellant (in all the appeals).

<NAME>, <NAME> and <NAME>, for the respondent in all the appeals).

The Judgment of the Court was delivered by <NAME> appeal by certificate arises from the decision ,of <ORG> in a reference under s. 27(1) of the Wealth Tax Act, 1957 (which we shall hereafter refer to as the Act). The question of law arising for decision in these appeals is :

"Whether in the facts and circumstances of the case, the trustee under the Trust deed dated 19th July 1949 executed by <NAME> was assessable to wealth tax under Section 21 of the Wealth Tax Act ?"

The tribunal upheld the contention of the <ORG> that the trustee is liable to be proceeded against under s. 21 of the Act but <ORG> disagreeing with the view taken by the tribunal answered the question referred to it in the negative. Hence this appeal.

The facts of the case as set out in the statement of the case submitted to <ORG> may now be briefly stated: The respondent <NAME> by means of a deed of trust dated July 19, 1949 transferred certain shares described in Schedule 7 of the trust deed and certain immovable properties and shares in business described in Schedule 8 of that deed unto him,self as the trustee for making provision for the maintenance of himself, his wife, for the maintenance, education and the marriage expenses of his unmarried daughters and for the maintenance and education expenses of his minor sons. The main purpose of the trust is set out in paragraph 3 of the objects of the trust. That paragraph reads :

"To apply the income of the Trust Estate for the maintenance and the joint use and benefit of the <NAME> and his wife the said <NAME> and also for the maintenance, education and marriage expenses of the said two minor daughters <NAME> and <NAME> and also for the maintenance and education of the <NAME>'s minor sons <NAME> and <NAME> PROVIDED ALWAYS that if the income of the Trust Estate is insufficient for the purpose of meeting any of the said expenses the Trustee shall have full liberty to dispose of or otherwise apply sufficient portion of the corpus of the Trust Estate for the purpose of discharging the trust contained in this clause."

Sub-paragraph 4 of the Trust deed provides that in the even of the <NAME> predeceasing his wife, the shares and securities mentioned in Schedule 7 was to be made over to his wife to be enjoyed by her as her absolute property, provided that if the <NAME> predeceased his wife before the marriages of the two unmarried daughters had been performed. the trustee was to retain out of the shares and securities mentioned in the said Schedule sufficient number of shares for the purpose of meeting the marriage expenses of the said two daughters or either of them as the case may be. Sub- paragraph(5) provides that after the marriages of both the daughters and /or after the death of both of such daughters, whichever happens first and also after the death of the <NAME>'s wife and the attainment of majority of both the minor sons, the trustee was to hold the Trust Estate for the absolute use and benefit of the two said sons, <NAME> and <NAME>. It was further provided that the intention of the <NAME> was that subject to the trust thereby created the said two minor sons would take a, vested interest in the trust estate. Under cl. (4) of the said deed provision was made for the residence of the <NAME>, his wife and the minor children free of rent in a part of, the trust properties described in Schedule 8 until the determination of the trust as aforesaid. Even before the first valuation date. with which we are concerned in these appeals, both the daughters had been married and the two sons had attained majority. The reference relates to wealth tax assessment of the assessee for the assessment years 1957-58, 1958-59, 1959-60 and 1960-61, the corresponding valuation dates being 2-11-1956, 23-11-1957. 11-11-1958 and 31-10-1959.

The department has assessed the respondent in respect of the wealth tax due in respect of the trust properties as a trustee. The question for consideration is whether he is liable to be assessed to wealth tax in respect of the trust properties. The respondent contends that as he is not holding the trust properties on behalf of the beneficiaries, he does not come within the scope of s. 21 of the Act and further as the share of the beneficiaries under the trust is not indeterminate, he cannot be taxed at the maximum rate. We shall first take up the question whether the case of the assessee comes within the scope of s. 21 (1) of the Act. At the material time s. 21 read thus "21(1). In the case of the assets chargeable to tax under this Act which are held by a court of wards or an administrator-general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise including a trustee under a valid, deed of wakf, the wealth tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager or trustee, as the case may be in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf the assets are held, and the provision of this Act shall apply accordingly."

Leaving out the unnecessary words, section 21 to the extent material for our present purpose can be recast thus :

In the case of the assets chargeable to tax under this Act which are held by a trustee appointed under a trust deed by a duly executed instrument in writing, whether testamentary or otherwise, the wealth tax shall be levied upon and recoverable from the trustee in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf the assets are held and the provision of this Act shall apply accordingly.

It is plain from the language of s. 21 (1) that a trustee is also brought within its scope. But that section proceeds on the basis that a trustee is holding the trust property on behalf of one or more beneficiaries.

<ORG> has come to the conclusion and that conclu- sion is supported by Mr. <NAME>, learned counsel for the assessee that it is well established that a trustee does not hold the trust property on behalf of the beneficiaries but he holds it' only for their benefit. Under the Trust Act , it is indisputable that a trustee is the legal owner of the trust property. He holds the trust property on his own right and not on behalf of someone else though he holds it for the benefit of the beneficiaries. <ORG> in coming to the conclusion that S. 21(1) is inapplicable to the facts of the case heavily relied on the decision of this Court in <NAME> and <NAME>. v. State of U. P.(,) In that case this Court was considering the scope of S. 11 (1) of the U.P. Agricultural Income-tax Act, 1948. That section reads:

"Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom the aggregate of the sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received by him, shall be assessed on such common manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect, of the agricultural income tax so payable by each such person and shall be liable to pay the same."

It may be noted that in that provision, there is no reference to trustees. That section speaks of "receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom". While interpreting that clause this Court held that a trustee is not a person who can be equated to a receiver or an administrator inasmuch as those persons hold the property on behalf of other persons whereas a trustee is the legal owner of the trust property. In that decision this Court also observed that there is a fundamental difference between a property being held on behalf of others and property being held for the benefit of others. In our opinion the ratio of that decision does not bear on the point under consideration though certain observations found therein may give some acceptance to the respondent. Section 11 of the U. P. Agricultural Income-tax Act does not refer to trustees at all whereas S. 21 (1) of the Act specifically refers to trustees. It is true that it refers to a trustee as holding a trust property on behalf of other persons. The conception that the trustee ;is holding the trust property on (1) 33 I.T.R. 472.

behalf of others may not be in conformity with the legal position as contemplated by the Trust Act but the legislature is competent in the absence of any restrictions placed on it by the Constitution. to give its own meaning to the words used by it in a statute. There can be hardly any doubt that the parliament while enacting s. 21 (2)of the Act proceeded on the basis that for the purpose of that Act the trustee is holding the trust property on behalf of the bene- ficiaries. The mere fact that this conception does not accord with the provisions of the Trust Act does not invalidate s. 21(1) As seen earlier s. 21(1) specifically takes in the trustees. It cannot be said and it was not said that the parliament had not specifically brought in the trustee under s. 21(1) . What was urged by Mr. <NAME> was that though the parliament intended to bring in the trustees within the scope of that provision, it failed to achieve its purpose because of the inartistic drafting, inasmuch as the section speaks of the "trustee holding the trust property on behalf of others". It is true that a taxing provision must receive a strict construction at the hands of the courts and if there is any ambiguity, the benefit of that ambiguity must go to the assessee. But that is not the same thing as saying that a taxing provision should not receive a reasonable construction. If the intention of the legislature is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of a provision as otiose. If the construction contended for on behalf of the respondent is accepted then a part of s. 21 (1) would become otiose. So long as the intention of the legislature is clear and beyond doubt, the court's have to carry out that intention. In our opinion <ORG> did not take a proper view of the decision of this <ORG> in <NAME>'s case(1). Section 21 (1) of the Act is analogous to s. 41 (1) of the Income-tax Act , 1922. The only difference between the two sections is that whereas the former deals with assets, the latter deals with income. Subject to this difference, the two provisions are identically worded. Hence the decisions rendered under s. 41 (1) of the Indian Income-tax Act , 1922 have bearing on the question arising for decision in this case.

<CITATION> ,(2) this Court proceeded on the basis that the income received by a trustee came within the scope of S. 41(1) of the Income-tax Act , 1922. <CITATION> .,(3) a similar view was taken by this Court. (1) 33 I.T.R. 472.

(3) 77 I.T.R. 350.

(2) 44 I.T.R. 172.

<CITATION> ,(1) this <ORG> again proceeded on the basis that S. 41 applied to the trustees <CITATION> ,(2) this <ORG> was called upon to interpret the scope of S. 41(1) . Therein the question was whether nattamaigars of Nagore Durgha who are considered as trustees in whom the properties of the Durgha vested would come within the scope of s. 41(1) of the Indian Income-tax Act, 1922. This <ORG> answered that question in the affirmative. Therein also it was contended that as the property is vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries though for their benefit, the income in the hands of the managing trustee fell outside the scope of s. 41(1) of the Act. Repelling that contention <NAME> (as he then was) speaking for the <ORG>, observed:

The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in section 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him.,, <CITATION> soree(3) while dealing with the scope of s. 41(1) , <ORG> had to deal with a contention similar to the one advanced in this case. Therein also the assessee relied on the decision of this <ORG> in <NAME>'s case(4). While rejecting the contention of the assessee <ORG> 'held that the observations made by this <ORG> in <NAME>'s case must be understood in the light of the provision that this <ORG> was considering in that case, The <ORG> held that s. 41 (1) of the Income-tax Act , 1922 is ap- plicable to a case where income is derived from the trust property even though the trustee does not strictly speaking receive such (1)  Supp. 2 S.C.R. 902.

(3) 51 I.T.R. 339.

(2) 57 I.T.R. 321.

(4) 33 I.T.R. 472.

income " on behalf of" the beneficiaries but is the legal owner of that income, the words "on behalf of" in s. 41(1) must be, construed as being equivalent to "for the benefit of and further in the case of a trust where the beneficiaries are indeterminate, the must be assessed at the maximum rate in the hands of the trustee in view of the first proviso to s. 41(1) . In the course of that judgment it was observed:

"But in the present case it we do not read that ex-pression in the manner I have indicated, then a good portion of section 41(1) and the first proviso thereto becomes otiose. It is not proper to construe that any portion of a provision in a statute is superfluous. Such a construction should be, avoided except in extreme cases. Though as a normal rule the courts should give to the words used in the statute its normal meaning, occasions do arise when it becomes necessary to give a special meaning to a word. For the reasons mentioned above, I interpret the words "on behalf of" found in section 41(1) and the first proviso thereto as equivalent to "for the benefit of".

In <NAME> and anr. v. Wealth Tax Officer, Calcutta and anr.(1) <ORG> held that the words "on behalf of" used in s. 21 (1) of the Act are synonymous with the ,expression "for the benefit of". It further held that notwithstanding that the trustees hold property for the benefit of beneficiaries and not on their behalf, s. 21 (1) applies to them and they are liable to wealth tax only "in the like manner and to the extent as it would be leviable upon and recoverable from any such beneficiary". <ORG> distinguished the decision of this Court in <NAME>'s case. <ORG> in <CITATION> (1), disagreeing with the decision under appeal and following the decision of <ORG> in <NAME>'s case (supra) took the view that a trustee also came within the scope of s. 21 (1) of the Act. The same view was taken by <ORG> in <CITATION> think that the view taken by the Calcutta, Bombay and Allahabad High Courts is the correct view.

Now coming to the question whether the shares of the bene- ficiaries under the trust deed on the relevant valuation dates are determinate or indeterminate, we have to bear in mind the fact that on those dates the <NAME> as well as his wife were alive.

(1)-46 I.T.R. 953. (2) 70 I.T.R. 600.

They had a right to be maintained out of the income of the trust properties. They had also a right of residence in the house. situate in that property. The two sons of the <NAME> had a right to be maintained and educated. That being so, there is no doubt that on the relevant dates, the shares of the beneficiaries were indeterminate. Hence the trustee had to be assessed under s. 21 (4) as it stood at the relevant time.

In the result these appeals are allowed and the answer given by <ORG> is revoked and in its place we answer that question in the affirmative namely that on the facts and circumstances of the case the trustee under the trust deed dated July 19, 1949 executed by <NAME> was assessable to, wealth tax under s. 21 of the Wealth Tax Act as it stood at the relevant time. The respondent to pay costs of the department both in this <ORG> and in <ORG>-hearing fee one set.

V. P. S Appeals allowed.


JUDGMENT <NAME>, J.

1. This appeal arises out of the appellant's petition before <ORG>, Ahmedabad. for getting the compensation of Rs. 17,700/- on account of the injuries received by her as a result of collision with a passenger bus belonging to the Ahmedabad Municipality on 22nd July, 1968. on Maninagar-Vatva road between Uttamnagar and Prakashnagar bus stops in the evening at about 5.20 p. m. The learned Judge of the <ORG> having dismissed the appellant's claim petition, the appellant-petitioner has preferred this appeal. The petition was registered before the said <ORG> as application No. 15/69.

2. The facts of the case are that the appellant-petitioner is studying in school and is residing with her parents at Isanpur. At the time of the accident she was of 16 years of age and was studying in 9th Standard. She was usually going to her school and returning home on cycle. On the day of the incident after her school hours were over she was returning home and proceeding from Jawahar Chowk to Uttamnagar. At that time one municipal transport bus which was driven by the original opponent No. 3, <NAME>, was found corning from the opposite side from Uttamnagar bus stand. According to the petitioner appellant the said bus was being driven with an excessive speed and was running on its wrong side. The story of the appellant is that when she first saw the bus, it was at a distance of about 40 ft. from her and though she saw that the sad bits was coming in front of her on the wrong side she thought that the bus would take the right side of the road but after a few minutes she found that the bus continued to rush towards her at the same speed. The appellant says that thereupon she apprehended danger to her life and thought that the bus was likely to hit her. The appellant further claims that she was going on the left extremity of the road. Beyond this road was a kutcha strip of road which was full of pits and some cement concrete machine was also lying there. The appellant says that therefore it was not possible for her to go further on her left, with the result that she took a decision to swerve towards her right hand side, presuming that she would be able to, bye-pass the bus safely as the bus was rushing towards her left hand side. However, according to, the appellant, even the driver of the bus swerved his vehicle towards the same side with the result that her cycle collided with the left hand front bumper and wheel of the bus. The appellant's cycle was entangled in the bumper of the bus and she herself was thrown away on the kutcha road on her right hand side at a distance of about 10 ft. from the place of collision. Immediately thereafter the bus stopped. The appellant says that after being thrown away she was rendered unconscious.

3. The appellant has produced the evidence of one <NAME>, whose deposition appears at Ext. 53. It is said that this witness was one of the passengers travelling in this bus Evidence reveals that this passenger immediately got down from the bus, and with the help of another passerby named <NAME>, Ex. 55, took the appellant to <ORG>, Maninagar. The appellant was treated at the hospital where it was found that the tibia and fibula bones of her, left leg were fractured. The fracture was thereafter reduced by the doctor on 24th July. 1968. The doctor also took two X-ray pictures of the said fractured bones. The appellant was thereafter discharged from the hospital on 26th July, 1968. However, the appellant continued to receive pain and felt that she was not cured. She was, therefore, shown to another Orthopaedic Surgeon Dr. <NAME>, whose deposition appears at Ex. 57. This doctor is working as Honorary Surgeon in <ORG> and has also his private clinic at Khanpur. He examined the appellant on 12th August. 1968, when he found that the wound on the tibia was discharging pus and, was in septic condition. This doctor again took X-ray Pictures. He removed the plaster and dressed the wounds. He further found that the fracture of the bones had not united. On 20th March. 1970, he again examined the appellant and found that the left leg of the appellant was disabled permanently to the extent of 12 %, on account of the thickening of the bone at the site of the fracture. Ultimately the left leg of the appellant was shortened by half an inch with the result that she had got a permanent limp. Thus according to this doctor, the appellant has got a permanent disability to the extent of 12% in her left leg.

4. It is found that the appellant was totally disabled for about six weeks during which time she could not attend her school. It is the case of the appellant that before the accident she was able to take 'part in sports, and being a good sports girl. she took part in the sports competition for running, hopping and kho-kho and also secured prizes on some occasions. However, on account of the injury which she has received, she is not now able to pursue any of these games. She is not able to run on account of the limp and though previous to the incident she sometimes used to walk the distance between her house and her school, she is now required to go to the school only by bus. In her deposition, the appellant claims that now on account of her permanent disability she is not able to walk at a stretch for more than 20 to 25 minutes because if she tries to walk, she gets pain. She further deposes that she can climb the stairs very slowly and feels ashamed on account of her limping gait.

5. The case of the appellant thus is that she got the above referred injury on account of the rash and negligent driving of the bus by its driver. The father of the appellant one <NAME>, whose deposition appears at Ex. 71, has deposed that there is scarcity of good boys in his community and the difficulty in obtaining a suitable match for the girl has now increased on account of the permanent limp which the appellant has got due to this accident.

6. The appellant has produced evidence to show that she spent Rs. 2,700/- for her treatment. She has therefore claimed this amount and has further claimed Rs. 15,000/- for pain and suffering as well as for loss of earning and diminution of her value in the matrimonial market.

7. As against the above the case of the respondent the Transport Manager, <ORG>, is that the accident has occurred not an account of any negligence of the driver of the bus, but on account of the negligence of the appellant herself. The case of the respondent is that the driver of the bus was going on the correct side of the road and with a moderate speed because it was the time when there were many school children on the road going home after the school hours. It is further pleaded an behalf of the respondent that though the appellant was going on her cycle on the correct side of the road when the bus came nearer to her, she suddenly took a turn towards her right hand side with the result that the driver of the bus swerved his bus towards his right hand side in order to save the appellant. However, in spite of the utmost care the driver of the bus could not escape from the collision with the result that the cycle driven by the appellant collided against the left hand side of the fore-wheel of the bus, and the appellant received the injuries in question According to the respondents, therefore, this accident would not have occurred had the appellant not preferred to swerve to her right hand side and had preferred to go straight on her own side.

8. Ex. 69 is the panchnama of the place of the incident. This panchnama was prepared a few hours after the incident and was over at about 8.00 p. m. The panchnama reveals some very significant facts which are very much material for appreciating the disputed points in this case. We shall, therefore. shortly narrate these facts. The road where the accident occurred is asphalted and the asphalted area of the road is of 20 ft. in width. The bus was going from south to north and the appellant was coming on her cycle from north to south. At the time of the panchnama the bus was facing towards north-east. Since the bus was going from south to north its left hand side was the western side of the road, while the left hand side of the appellant, who was riding on her cycle was the eastern side of the road, Now the panchanama shows that when the same was prepared, the left hand side of the front wheel of the bus was 8' 8" away from the western border of the asphalt road. while its right hand side front wheel was 4' 6" away from the eastern side of the road. The width of the bus was 7' 6". So far as the rear two wheels are concerned, the, left hand side rear wheel of the bus was 6' 11" from the western edge of the road while its right hand side rear wheel was 6' 6"' from the eastern edge of the road. This position of the bus makes it clear that at the time of the panchnama it was lying occupying the major portion of the eastern half of the road which means that at that time it was occupying a substantial portion of its right hand side of the road. The accident is said to have occurred at a place which is about 2' away from the western half of the road from the position of the left hand side fore-wheel of the bus. It is an admitted fact that on both the sides of the road there were kutcha strips on which Pedestrians could walk.

9. Apart from the deposition of the appellant-petitioner we have, also got in evidence the deposition of appellant's above referred witness <NAME>, Ex. 53. Since this witness was one of the passengers travelling in the bus and since he has deposed to some very material facts relating to this case, it would be necessary to narrate at this stage the nature of the evidence given by this witness. The witness says that he boarded this bus from Isanpur at 5.10 p. m. and occupied a seat near the rear door of the bus on its left hand side. He deposes that the road from Isanpur upto Uttamnagar is a kutcha road and when the bus was passing on this kutcha road it gave a lot of jerks with the result that he found it uncomfortable to sit. He, therefore, got up from his seat and preferred to stand catching hold of the ceiling bar of the bus to avoid jerks. The witness says that the bus did not stop at Uttamnagar bus stand and continued to run at an increased speed when it came on the pucka road from the Uttamnagar bus stand. He further deposes that after coming on the pucka road, the bus was found running on the wrong side of the road i.e., the eastern side keeping a distance of 5 to 6 ft. from the eastern boundary of the road. At this time the Pedestrian traffic of students was already on the road going from Prakashnagar side to Uttamnagar side. The witness thereafter claims that since he was standing, he could observe the movement on the road from wind screen of the bus. At that time he saw the appellant coming in front of the bus on her cycle which was driven by her on the correct side of the road i.e., on the eastern side. At that time the distance between the bus and the appellant was about 30". The witness could not see anything further, but within a second or two he heard a clashing sound and immediately thereafter found that the bus had stopped. He at once got down from the bus and found that the cycle of the appellant had got entangled in the front portion of the bus. Many other passersby thereafter collected and as already noted above, the witness took the girl with the help of other witness <NAME> to <ORG> at Maninagar. This witness supports the appellant in her story that the kutcha portion of the road on its eastern side was full of pits and mortar as well as one cement concrete machine as some construction work was going on nearby.

10. The learned Judge of the Tribunal has disbelieved evidence given by the appellant and the above referred witness principally on one ground, namely, that the position of the bus after the accident which is revealed by them is not consistent with the position of the bus which was found at the time when the panchnama Ex. 36 was made. This is clear by reference to paragraphs 16 and 17 of his judgment. On behalf of the appellant it was contended that the learned Judge has very lightly brushed aside the evidence of the girl and her witness merely because the position of the bus soon after the incident as described by them is not found to be in harmony with the position mentioned in the panchnama. The discussion which follows shows that this grievance of the appellant is quite justified.

11. The first and the most pertinent question which requires close consideration is whether the appellant is right when she asserts that the driver of the bus was going with an excessive speed. So for as the question of speed is concerned we are satisfied that the circumstances of the case lend sufficient corroboration to the evidence given by the petitioner and her witness <NAME>. The deposition of the driver <NAME>, appears at Ex. 74. In his deposition he asserts that he was going with a moderate speed and ' when he first noticed the appellant coming on her cycle, there was a distance of 30 to 35 feet, between her and the bus. He then deposes that when the distance between the bus and the appellant was about 10 to 15 ft., the appellant took a sudden turn on her right hand side, and seeing this he applied brakes to his vehicle and simultaneously swerved his vehicle towards his right hand side, He however could not save the collision because the appellant's cycle dashed against the front left hand side of the bus. He further deposes that even after he applied the brakes the bus proceeded further by about 5 ft. This portion of the deposition of the witness makes it clear that he applied brakes to his vehicle at a distance of 20 ft. from the place where it ultimately stopped. Now if the vehicle was going with a moderate speed, it is difficult to believe that even after the application of the brakes it could drag on up to a distance of 20 ft. This fact therefore supplies very inherent evidence about the speed with which the vehicle was driven at the relevant time. Here it should be noticed that even the driver admits that many school children were going on the road at the relevant time. It is, therefore fairly clear that the road was congested with pedestrian traffic most of whom were school children. In these circumstances the driver of the bus was expected to drive his vehicle in such a manner that it could be taken into control within a fraction of a moment. But this he has not been able to do. In our opinion, this particular fact gives good deal of credence to the appellant's evidence as well as the evidence supplied by her witness <NAME>, both of whom say that the bus was being a driven with excessive speed. As a matter of fact, we find nothing in the evidence of <NAME> to show that he is in any manner interested in siding with the appellant. The fact of the matter is that the appellant belongs to a <NAME> family, while <NAME> is a Hindu. Apart from the fact that both of them are residing at the same suburb. there is absolutely nothing to show that <NAME> has got any special reasons to depose falsely as regards the speed of the bus. In our opinion, therefore, the appellant has produced satisfactory evidence that the bus was not going with the speed which was normal considering the fact that the road was full of the traffic consisting of school children.

12. So far as the side on which the driver was driving his bus is concerned. we are of the opinion, that a mere look at the position of the bus, as described in the panchnama is sufficient. We have already described that when the panchnama was prepared, the bus was lying much on its wrong side i.e., on the eastern side of the road. It occupied a substantial portion of the eastern side. Now it is no doubt true that exactly at the moment of the impact the driver of the bus seems to have swerved his vehicle more towards his right hand side i.e.. the eastern side of the road. It is for this reason that the front portion of the bus is slanting more towards the eastern side. When a vehicle is swerved towards a particular side by the operation of the steering wheel, the front wheels would be affected first but the rear wheels would change their side only after the vehicle travels a little towards the swerved side. Therefore the correct position of the bus when it was running towards northern side would be suggested properly by the position of the rear side of the bus. Even this position shows that the vehicle was more on its wrong side than on its correct side because the left rear side of the vehicle was hardly 6' 11' from the western border of the road and the right rear wheel was 6' 6" away from the eastern border of the road. Considering the fact that the width of the bus was 7' 6" it follows that the bus occupied 14' 5" of the whole road which is of the width at 20 ft. From these facts therefore it is clear that the driver of the bus was driving his vehicle not on its correct side. These facts, therefore, give sufficient corroboration to the appellant and her witness <NAME>, who definitely deposes that the bus was going on its tight hand side.

13. The above discussion shows two very important facts namely. (1) that the driver of the bus was driving it on the incorrect side and (2) that he was driving it at a more than normal speed which was expected on a road congested with the traffic of school children. If these two facts are now taken into account, with a view to appreciate the appellant's story one would not find it difficult to believe that the appellant had sufficient reasons to believe that the bus was direct 17 coming on her. Here one very important fact which should be noticed is that even according to the driver of the bus, the appellant we coming from the opposite side on the eastern portion of the road. In other words, the appellant was driving her cycle on the correct side. Now it is an admitted position that at a particular point she took a sudden turn. The question is why she did so. It is an admitted position that there were no cross roads at the place where the accident occurred and in ordinary course the appellant had absolutely no reason to take sudden turn towards Right hand side. Had she no reasons to apprehend that she would be crushed by the on coming bus towards her there was no necessity for her to take the turn towards her right hand side. This inherent circumstance of the case therefore gives good deal of credence to the appellant's story that she had to take turn towards her right hand side an account of her apprehension that if she did not do so, she would be crushed by the on coming vehicle. We therefore find that the learned Judge of the <ORG> was not justified in discarding the evidence offered by the appellant on this point. We are of the opinion that the appellant was speared on account of rather rash and negligent driving of the bus and it was an account of this scare that she took the decision of swerving her cycle towards her right hand side. These facts are, therefore in our opinion, sufficient to come to a conclusion that the root and the main cause, of this accident was the rash and negligent driving of the bus.

14. But the case is not concluded here. We find that even if the appellant had a reasonable apprehension that on going further on her own side she was likely to meet with the collision against the oncoming bus, swerving towards the right hand side was not the on1y course open to her. The position of the bus even after the accident shows that had the appellant stopped at the place where she had the real apprehension, no accident could have occurred. In our opinion, therefore, the appellant has definitely taken a wrong decision in swerving her cycle towards the right hard side. Again it should be noticed that the road was strewn with the pedestrain traffic of school boys who were going home. The appellant says that she thought that if she took a turn towards her right hand side, she would be able to save herself from the collision with the bus as the bus was going on the wrong side. In other words she expected the bus to pass without any collision on the eastern side of the road. It is apparent that this decision of the appellant was not only wrong but was highly risky. She by her action appears to have added to, the mess which was already created by the driver of the bus by taking his vehicle on the wrong side. Of course, the driver of the bus seems to have swerved his vehicle more towards the eastern side of the road and but for this action of the driver it was likely that the girl would have been crushed under one of the wheels of the bus. But the fact remains that the appel1ant could have avoided all this had she preferred to stop on her own side instead of going towards the wrong side. We find therefore that this is a case where the appellant has contributed to a certain extent to the unfortunate accident.

15. In view of these findings, the question which now arises to be considered is whether the appellant can be said to be in any manner responsible for the accident and if so whether the respondents can avoid the responsibility which would arise in torts. This is more or less a legal question which we shall briefly discuss.

16. In a long series of decisions this court has been right1y guided by the view that those who are moving with heavy and mechanically operated vehicles in road traffic bear a greater responsibility not on1v towards the pedestarians and cyclists but also towards equally heavier and speedier vehicles and should, therefore, drive their vehicles in such a manner that they can stop them and take them into control within a fraction of a moment to avoid a collision. The driver of such a vehicle should always be on a proper look out and watch the road behaviour of all the pedestrians and vehicles moving an the road.

17. But this does not mean that the pedestrians cyclists and others who use a public road owe no duty to themselves and others moving on the road. They can't afford to be heedless and careless to the traffic rules. and can't always get rid of their responsibility by throwing the whole blame on the driver of a heavier vehicle. In the traffic jammed roads of a city like Ahmedabad this point cannot be over emphasised. It can be broadly stated that when on a public road two parties are so moving in relation to each other as to involve the risk of collision, each owes to the other a duty to move with due care, and try his best to avoid a collision. This would be true whether both are moving with vehicles heavier or lighter or one is moving in a vehicle and the other on foot. Pedestrians also owe a duty to the traffic and more often an undisciplined 'jav' walker's contribution to an accident is no smaller than that of a speed intoxicated driver of an automobile. It is therefore necessary to emphasise that a disciplined traffic behaviour on a public road is a sine qua non of the personal safety of all who use that road.

18. It is here that the law on contributory negligence assumes great importance. At Common Law in England once the practice was that if you prove that the victim of an accident who brought an action in tort was partly responsible for the unfortunate accident, then he could recover nothing by way of damages. An earlier decision in <NAME> v. <NAME>, (1809) 11 East 60 is an illustration on the point. There the defendant had erected an Obstruction in the highway and the Plaintiff rode against it and got himself hurt. The plaintiff was found riding without reasonable and ordinary care. The jury gave a verdict for the defendant and the same was upheld. Lord <NAME>, C. J., observed "one person being at fault does not dispense with another's using ordinary care of himself". Thus though the defendant was found to be a tortfeasor, the plaintiffs contribution to the tort wholly absolved him from damages. A rigid application of this rule obviously resulted in harsh arid inequitable treatment of those whose contribution to the wrong was less but whose loss and suffering was great. The courts therefore introduced the rule of "last opportunity" which enabled a plaintiff to recover notwithstanding his negligence if it was found that the defendant had the last opportunity to avoid the accident. The case of <NAME> v. <NAME>, (1842) 10 M & W 546 is an instance on this point. There the plaintiff fettered the fore feet of his donkey and negligent1y turned it loose on the highway Defendant. driving his wagon and horses faster than he should have done, collided and killed the donkey. Though the plaintiff had contributed to the negligence by turning out the donkey loose on the highway, the defendant was held liable for damages because by exercise of ordinary care at the last opportunity he could have avoided the consequences of plaintiff's negligence. <ORG> approved of this Principle in <NAME> v. L. & N. W. Rlv., (1876) 1 AC 754 (759). This rule of "last opportunity" was extended to "constructive last opportunity" in <ORG> v. <NAME>, (1916) 1 AC 719 = (AIR 1916 PC 208).

19. This rule of "last opportunity" obviously failed to give an equitable treatment to the parties concerned because it was based on an illogical postulate that in every case the person whose negligence came last in time was solely responsible for the damage. It took no account of the partial contribution to the unfortunate accident by the other party. Therefore the view taken by <ORG> in Admiralty Commrs. v, S. S. Volute, (1922) 1 AC 129 became a landmark in the law relating to contributory negligence as it was held in that case that even where the defendant's negligence is subsequent to that of the Plaintiff, the plaintiff's negligence is still contributory to the accident if there is not "a sufficient separation of time, place and circumstance" between Plaintiff's negligence and defendant's negligence to make the latter the sole cause of it. Following observations of Viscount <NAME>. L. C., in that case are described by Viscount <NAME> as "a great and permanent contribution to our law on the subject of contributory negligence and to the science of jurisprudence":

"Upon the whole, I think" said Lord <NAME>, "that the question of contributory negligence must be dealt with somewhat broadly and upon commonsense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together and the second act of negligence is so much mixed up with the state of things brought about by the first act that the party second1y negligent, while not held free from blame ............ might, on the other hand invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution."

This view, which has since received statutory recognition in Law Reform (Contributory Negligence) Act, 1945, in England, has done away with some of the artificiality of the old law according to which the plaintiff lost his case on proof of the slightest contribution by him to the accident. In words of Lord <NAME> in <ORG> (owners) v. <ORG> (owners), 1948 AC 140 at P. 155 the new rule required that "each problem should be approached broadly avoiding the fine distinctions which were apt to be drawn when some slight act of negligence on the part of the plaintiff might defeat his claim altogether."

20. My learned brother had an opportunity to touch this subject in <CITATION> . of deceased <NAME>, (1972) 13 Guj LR 920 = (AIR 1973 Guj 216). Speaking about the rule of "last opportunity" he has observed as under at page 935 = (at p. 223 of AIR) of the report:

" After the decision in the <NAME>, (1922) 1 AC 129 and Swadling v. <NAME>, 1931 AC 1, the doctrine fell into disrepute and was superseded by the simple test: What was the cause, or what were the causes of the damage ? Therefore, even where the plaintiff contributed some negligence under the developed common law he recovered reduced damages even though he had last opportunity of avoiding damages. The learned Judge also pointed out at page. 323 that there was a fallacy in this doctrine because as a proposition of law it could never be supported by saying that negligence which created a dangerous obstruction ceased as soon as the driver of the oncoming vehicle saw it. That view could not be accepted because the plaintiff's negligence in leaving the obstruction was a continuous negligence, which continued after the oncoming driver saw it. The learned Judge pointed out that another test of contributory negligence of legal duty is as fallacious as that test of last opportunity because the real question is not whether the plaintiff was neglecting some legal duty but whether he was acting as a reasonable man with reasonable care. Speaking, therefore, generally, the learned Judge observed at page 326, that the crucial questions in road accident cases are: (1) what faults were there which caused the damage ? (2) what are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault?"

In that case there was no question of contributory negligence of the victim of the accident because the question was regarding the contribution made by the joint tortfeasors. This court has, however, given an indication in the above quoted observations that if a finding of contribution to the wrong by the victim of the accident is reached, the next question is regarding the apportionment of damages in proportion to the contribution made by each party to the accident. In yet another case viz. <NAME> v. <NAME>. (1972) 13 Gu.1 LR 662 question of contributory negligence was raised and reliance was placed upon certain observations made by Rajasthan High Court in <CITATION> . AIR 1960 Raj 224 at p. 227 to the effect that if the proximate cause of the injury was the negligence of both the plaintiff and the defendant, the injury, should be allowed to rest where it lay and plaintiff could not recover anything. Speaking about this my learned brother observed:

"It is not necessary for us to pronounce on the correctness of the ultimate ratio of this decision as to whether in case of contributory negligence the doctrine of apportionment should be applied or not, and whether on such assumption of any identification between the cyclist and the victim any such plea of contributory negligence could be urged in such case."

This court found as a fact in the above case that there was no contributory negligence on the part of the applicant. In view of such a finding. there was no necessity of applying doctrine of apportionment in that case. In the instant case, the question regarding application of that doctrine does arise and we have no hesitation in applying the same in cases of contributory negligence even though we in our country have got no statute such as Law Reform (Contributory Negligence) Act 1945 of England as this power is implied1v vested in the <ORG> by the <ORG> by creating a duty to award a just compensation under our Act.

21. <NAME> who appeared for the appellant-petitioner however, contended that the facts of this case do not warrant any finding that the appellant has contributed anything to this accident. According to him the appellant was faced with dilemma whether to go on her right side or to go on her left side, and since this dilemma was a result of the rash and negligent act of the driver of the bus she could not be saddled with any liability arising out of contributory negligence even if she is found to have taken a wrong decision. In support of this contention he relied upon the following observations found in <NAME> and <NAME> on Tort at Page 114, 9th Edition:

"Where the defendant's negligence has put the plaintiff in a dilemma, the defendant cannot escape liability if the plaintiff, in the agony of the moment, tries to save himself by choosing a course of conduct which proves to be the wrong one, provided the plaintiff acted in a reasonable apprehension of danger and the method by which he tried to avoid it was reasonable. "

The learned author seems to have taken these observations from <NAME> book on "Tort and contributory negligence". We find that these observations do not apply to the facts of the present case. They would apply only if it is found that the method which the appellant adopted to avoid the danger was a reasonable one The question is whether this method was a reasonable one. It was not difficult for the appellant to take a decision to stop at the place where she first apprehended danger in stead of going on her wrong side to invite further danger. All that was expected of the appellant was that she should not have failed to take reasonable care of her own safety. It is found that by taking her cycle on the wrong side of the road, she put her own safety to a greater jeopardy. As observed by Lord <NAME> in <NAME> v. <ORG>, (1952) 2 QB 608 at p.615, a person is guilty of contributory negligence if he ought reasonably to have fore seen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Here the appellant has obviously failed to take into account the possibility of the driver of the bus and other pedestrians to be careless and even purplexed if she took her cycle on the wrong side of the road. In our opinion, therefore, the appellant has not taken proper care, by swerving her cycle on her right hand side and, therefore,we conclude that she has definitely contributed to this accident.

22. The question is to what extent she has made this contribution. Answer to this question is necessary because the damages which would eventually be awarded to the petitioner would stand reduced in proportion to her contribution to the accident. The English Judges who are required to make such an apportionment are expected by Section 1(1) of the Law Reforms Act of 1945 to reduce the damages, in case of contributory negligence,, "to such extent as the court thinks just and equitable having regard to claimant's share in the responsibility for the damages". They have, broadly speaking, accepted two principal criteria of "responsibility". They are (1) causation and (2) culpability. (<NAME> v. <ORG>, (1949 ) 2 KB 291. 326 per <NAME>, L. J.. <NAME> v. <ORG>, (1953) AC 663, 682 per Lord <NAME>; the <NAME>, (1967) 1 AC 826 at p. 845 Per Lord <NAME>). In other words the chain of causation which led to the accident and want of reasonable care which the claimant failed to exercise, if appreciated in a comprehensive and integrated manner would provide a good guide on the question of apportionment. <NAME> has summarised this point in the following words:

"The result is, therefore, that there is no single principle for the apportionment of damages in cases of contributory negligence and certainly no mathematical approach is possible. No doubt the extent of the plaintiff's lack of care for his own safety must be a major factor in all cases, but the court is directed by the statute to do what is "just and equitable". The matter is thus one for the discretion of the court and, though the discretion must be exercised judicially, it is both unnecessary and undesirable that the exercise of the discretion be fettered by rigid rules requiring the court to take some aspects of the given case into account and to reject others."

If we look to the facts of this case in the light of the chain of causation, we find that initially it was the negligence of the driver of the bus which frightened the appellant to take a particular decision. It was as a result of this negligence in driving the bus which induced the appellant in taking a wrong decision of going to the wrong side. Here it should be noticed that at the relevant time, the appellant was, hardly of 16 years of age. A girl of her age would surely not possess the matured and full thinking which could be expected of a person of an advanced age. Under the circumstances, we do not find ourselves in agreement with the learned Govt. <NAME> that even if it is believed that this is a case of contributory negligence, the appellant's contribution to the accident should be assessed at 50%. In our opinion if an integrated and comprehensive view of caution and responsibility is taken it cannot be said that the appellant has contributed anything more than 25% to the unfortunate accident.

23. This brings us to the question as regards the quantum of damages. So far as the question of damages is concerned the law is quite settled so far as this court is concerned. We would only point out to the decision given by this court in <NAME> v. <NAME>. (supra) where the whole point is discussed at length in Paras. 5 to 7 of the reported judgment. In cases of personal injury, general damages can be given under three heads namely:

(1) Personal suffering and loss of enjoyment of life:

(3) Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff; and (5) The probable future loss of income by reason of incapacity or diminished capacity for work.

So far as the female claimants are concerned one question which every court should never fail to take into consideration is whether the accident has resulted in any injury which would diminish her prospects in the matrimonial market. In <NAME> v. <NAME>, the claimant had lost one of her hands as a result of the accident. This court has extensively discussed how a loss of this type would result in permanent incapacity in case of a female who is expected to run her household. It is held in that case that under the head of personal suffering and loss of enjoyment alone the compensation of the sum of Rs. 10,000/- would be justified. For this proposition the court has relied upon various awards, English as well as Indian. given by different Judges. We see no reason to depart from this reasoning so far as this case is concerned. Therefore, under the head of personal suffering and loss of enjoyment of life, we find that the appellant is entitled to get the compensation of Rs. 10,00/- Under the second head the damages can be awarded for the Pecuniary loss in form of expenditure which the claimant is required to incur on account of the nature of the defect resulting from injury. No such damages are proved in this case. And hence nothing is awardable under this head. So far as the third head is concerned, the question is what would be the probable future loss of income, by reason of incapacity or diminished capacity for work. The appellant is a young girl of 16 to 17 years of age. She has to pass the whole of her life with a limp in one of her legs. Obviously her matrimonial prospects have been substantially impaired. She is taking education in school and there is no reason not to believe that by the course of time she would have been able to acquire the earning capacity which would be just sufficient to maintain herself and her family. She is also found to be a sports girl but as a result of the injury which she has received. she is unable to pursue the sports of her choice. This would be a permanent handicap to her in future life and would result in the deprivation of the ordinary enjoyments of life. Taking therefore all these facts into consideration, we are of the opinion that under the third head, she should be awarded the compensation of Rs. 7.500/-. Over and above this, the claimant is entitled to special damages of Rs. 2,700/- actual1y spent after medical treatment. The <ORG> has rightly held this expenditure as Proved.

24. Thus the total amount of compensation which the appellant is found entitled to get is of the amount of Rupees 20,2001/- Reducing this compensation in proportion to the contribution which she has made to the extent of approximately 25 %. we are of the opinion that the appellant should be awarded the compensation of Rs. 15,000/-. This Appeal is accordingly allowed with costs throughout and with interest on the above referred amount of Rs. 15,1000/- from the date of the original petition to the date of payment at the rate of 6%. The award Passed by the learned Judge of the <ORG> is accordingly set aside and the appeal is accordingly allowed.

25. Appeal allowed.


JUDGMENT <NAME>, J.

1. On August 22, 1949, the respondent made an application in <ORG> of the <NAME> of Sirsi, District Kanara, praying for delivery of possession of property which the appellant was on that date possessing as the tenant under him, on the basis of a "<NAME>" deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-in-interest. One of the terms of the lease was that if rent for three consecutive years fell in arrears the <NAME> right will be void and the lessee should hand over possession of the property to the lessor. In the application made in the <NAME>'s Court the respondent based his claim for possession on this express condition in the lease as also on an alleged termination by him of the tenancy. The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. LXVII of 1948), hereinafter referred to as the Bombay Tenancy Act, which it is not disputed applied to this tenancy contained provision for termination of tenancy in its s. 14.

2. The defendant-appellant admitted that rent for three successive years had not been paid but contended inter alia that the plaintiff was not entitled to an order for possession of the property as he had not "given notice that he was entitled to obtain possession of the same under the rent agreement and that he had terminated the tenancy." The <NAME> overruled this contention and made an order for possession in favour of the plaintiff-respondent subject to the condition that the tenancy of the sub-tenants would not be disturbed.

3. On appeal the Collector of Kanara held that the <NAME> who had made the order had no power under the Bombay Tenancy Act and so had no jurisdiction to make such an order. He also held that the plaintiff-respondent was not entitled to an order for possession as the tenancy had not been terminated by due notice. Accordingly, he allowed the appeal and set aside the order of the <NAME>.

4. Against this order the landlord (plaintiff-respondent) appealed to <ORG>. Before that Tribunal the question of the <NAME>'s jurisdiction does not appear to have been raised. The Tribunal held that the Bombay Tenancy Act was applicable to lands held on <NAME> tenure but the landlord must fail because he had failed to terminate the tenancy by notice before instituting the action for ejectment. Accordingly, he rejected the application for possession.

5. The landlord (plaintiff-respondent) then made an application to <ORG> and prayed that it may be pleased "to exercise its power of superintendence over <ORG> under Art. 227 of the Constitution of India, by calling for the record and proceedings in the case, and on perusal thereof set aside the order of the <ORG> and the Collector and restore the order of the <NAME>, by issuing the writ of certiorari or any other suitable writ." <ORG> was of opinion that the <ORG> had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of proceedings. In that view the <ORG> issued a writ of certiorari, quashed the order of the <ORG> and restored the order of the <NAME>.

6. The character and scope of writs of certiorari have been dealt with by this <ORG> in some detail in its decision <CITATION> . After referring to certain earlier decisions of this <ORG> cited therein this <ORG> observed at p. 1121 :-

"On these authorities, the following propositions may be taken as established : (1) Certiorari will be issued for correcting errors of jurisdiction, as and when an inferior <ORG> or <ORG> acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the <ORG> or <ORG> acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The <ORG> issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the <ORG> will not review findings of fact reached by the inferior <ORG> or <ORG>, even if they be erroneous. This is on the principle that a <ORG> which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the <ORG> does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior <ORG> were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute."

7. Besides the above three propositions, a fourth proposition as to which there appears to have been some controversy, was also discussed, namely, whether certiorari can be issued when the decision of the inferior <ORG> or <ORG> is erroneous in law. After referring to certain reported decisions, English as well as Indian, the position was thus summarised by this <ORG> at p. 1123 as follows :-

"It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record ? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. <NAME> for the first respondent contended on the strength of certain observations of <NAME>, C.J., in <CITATION> , that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

8. The main question that arises for our consideration in this appeal by special leave granted by this <ORG> is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was "a mere error not so apparent on the face of the record", which can only be corrected by an appeal if an appeal lies at all.

9. As already stated the principal contention of the defendant-appellant was that the landlord, the plaintiff-respondent had no right to an order of possession inasmuch as, he had not terminated the tenancy by given a notice to the defendant-appellant. <ORG> accepted this contention as correct. The question is whether there was an error apparent on the face of the judgment of <ORG> which <ORG> could quash by issuing a writ of certiorari. It is necessary to consider first the words of s. 14 of the Bombay Tenancy Act which is said to require a notice before a tenancy can be terminated. The section is in these words :

"14. Termination of tenancy : (1) Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant :-

(a) (i) has failed to pay in any year, within 15 days from the day fixed for the payment of the last instalment of land revenue in accordance with the rules made under the Bombay Land Revenue Code, 1879, for that year, the rent of such land for that year, or

(ii) if an application for the determination of reasonable rent is pending before the <NAME> or the Collector under section 12, has failed to deposit within 15 days from the aforesaid date with the <NAME> or the Collector, as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application has been made, or

(iii) in case the reasonable rent determined under section 12 is higher than the sum deposited by him, has failed to pay the balance due from him within two months from the date of the decision of the <NAME> or the Collector, as the case may be;

(b) has done any act which is destructive or permanently injurious to the land;

(c) has sub-divided the land;

(d) has sub-let the land or failed to cultivate it personally; or

(e) has used such land for a purpose other than agriculture.

2. In the case of a tenant, the duration of whose tenancy is for a period of 10 years or more, the tenancy shall terminate at the expiration of such period, unless the landlord has by the acceptance of rent or by any act or conduct of his allowed the tenant to hold over within the meaning of section 116 of the Transfer of Property Act, 1882.

3. Notwithstanding anything contained in sub-section (1), the tenancy of any land held by a tenant who is a minor or who is subject to physical or mental disability shall not be liable to be determined under the said sub-section only on the ground that such land has been sub-let on behalf of the said tenant."

10. It has to be noticed that this section does not in express terms provide for the act of termination of tenancy to be effected by notice given by the landlord. Section 29 , sub-s. 2, which provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the <NAME>, also does not provide that any notice has to be given before an application for possession is to be made.

11. On behalf of the appellant it is contended however that the very words used in s. 14 compel the conclusion that there is no effective termination without some kind of overt act done by the landlord indicating that he intends to terminate the tenancy. This, it is said, is the result of the words used by the <ORG> that a tenancy "shall not be terminated" in marked distinction to the words as regards termination of tenancies under s. 111 of the Transfer of Property Act. That section of the Transfer of Property Act lays down that the lease of immovable properties "determines" in a number of different ways. We find that with full knowledge of the use of the word "determines" in s. 111 of the Transfer of Property Act the Bombay <ORG> instead of saying that the tenancy "determines" or "shall not terminate" said that the tenancy "shall not be terminated". It is suggested that this different language was used deliberately and not by accident. Again, in sub-s. 2 of s. 14 when the question of termination of tenancy by efflux of time in certain cases is provided for, the legislature, it is pointed out, says that the tenancy shall terminate at the expiration of such period. The argument is that the only reason for this difference in language can be that the <ORG> intended that while in the cases contemplated under sub-s. 2 of s. 14 , the termination will take effect automatically without any positive overt act on the part of the landlord, an act of the landlord actually exercising his option to terminate shall be required in the cases under sub-s. 1 of s. 14 before there is an effective termination. In exercising that option it is urged the landlord must communicate his intention to do so to the other party to the contract, viz., the tenant.

12. The learned judges of <ORG> point out that s. 24 of the Bombay Tenancy Act provides for a notice in writing before a proceeding for ejectment will lie where the termination is said to be on the ground set forth in s. 14(1)(b) , viz., that a tenant has done any act which is destructive or permanently injurious to the land and point out that no provision for such notice has been made for any of the other cases contemplated by s. 14(1) . The rival argument is that the provision for notice under s. 24 where the termination is on the ground whether the tenant had done any act which is destructive or permanently injurious to the land is to give the tenant a chance of remedying the injury committed and has nothing to do with the fact of termination, and that the <ORG> might, if it had thought fit, also have enacted provision for such a chance to tenants who had not paid their rents to pay up their rents and might in that case have provided for a notice to be given by the landlord recording the fact of non-payment. Can the omission of the <ORG> to provide for such opportunity to a defaulting tenant be any ground for thinking that the termination itself is effective without notice ? Does the fact that s. 24 says that the landlord must serve on the tenant a notice in writing specifying the act of destruction or injury complained of therefore weaken in any way the inference implicit in the use of the words "shall not be terminated" that some communication of the landlord's exercising that option to terminate must be communicated to the tenant before there is an effective termination ?

13. On behalf of the plaintiff-respondent it is contended that in any case this intention to exercise the option to terminate is sufficiently expressed by the very fact of application for possession having been made and that it would be reasonable to hold that sufficient notice to terminate was given by the very fact of the application having been made. In this connection it is necessary to take into consideration the words used by the <ORG> in s. 25 :-

Relief against termination of tenancy for non-payment of rent :-

"Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the <ORG> shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceedings, within 15 days from the date of order, and if the tenant complies with such order, the <ORG> shall, in lieu of making an order of ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated :-

Provided that nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he had failed for any three years to pay rent within the period specified in s. 14 ."

14. Of course as the present case is one of failure by the tenant for three years to pay rent within the period specified in s. 14 the provision in the operative portion of s. 25 will not, it is conceded, apply to this case but the argument is that that circumstance is no reason why we should not consider the language in s. 25 to see whether the <ORG>'s intention was that the termination should take place prior to and independent of, filing of the proceedings. The use of the word "and" in "where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceedings to eject the tenant . . . ." is, it is said, a justification for the conclusion that the <ORG> contemplated and intended that in all cases of termination on non-payment of rent the termination should take place first and after the termination was completed the landlord was at liberty to file proceedings to eject the tenant. If this contention be correct there would be no justification for thinking that the <ORG>'s intention was different in this matter where the non-payment was for three years.

15. This brings us to the consideration of the effect of s. 3 of the Bombay Tenancy Act. The section runs thus :-

"3. The provision of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies."

16. Chapter V of the Transfer of Property Act contains 12 sections - sections 105 to 116 . Of these s. 111 contains provisions as regards the determination of lease. Clause (g) of this section as it stood at the time the <ORG> enacted the Bombay Tenancy Act including s. 3 was in these words :-

"(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."

17. We have in this case a lease which says in express terms that on non-payment of rent for three consecutive years the lessor may re-enter. There will, therefore, be according to the provisions of Clause (g) as they stand now and as they stood in 1948 when the Bombay Tenancy Act was enacted, a determination of the lease provided that the lessor has given notice in writing to the lessee of his intention to determine the lease. If Clause (g) as it stood at the time of the enactment of the Bombay Tenancy Act and as it stands now applies to the tenancy in the present litigation there is no escape from the conclusion that there has been no determination of the tenancy under the provisions of s. 3 of the Bombay Tenancy Act. It has to be noticed, however, that the requirement of a notice in writing being given by the lessor to the lessee of the lessor's intention to determine the lease became a part of Clause (g) only on the amendment of the Transfer of Property Act by Act 20 of 1929. By s. 57 of this Amending Act the words "gives notice in writing to the lessee of" was substituted for the words "does some act showing". Section 63 of the Amending Act provided inter alia that nothing in s. 57 of the Amending Act shall be deemed in any way to affect the terms and incidents of any transfer of property made or effected before the first day of April, 1930. A question has been raised that s. 57 of the Amending Act does not affect the present tenancy the lease having been given long before 1930 and the provisions of s. 111(g) of the Transfer of Property Act which will apply to the tenancy in the present litigation are of clause (g) as it stood before the Amending Act was passed. This argument however is repelled by pointing out that s. 3 of the Bombay Tenancy Act makes no distinction whatsoever as between tenancies and leases made before April 1, 1930, and those made after but instead it says generally that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. It has been suggested that the proper way of approaching this question is to read as a proviso to s. 111(g) as well as the other sections mentioned in s. 63 of the Amending Act, the words "the terms or incidents of any transfer of property made effective before April 1, 1929, will not be affected hereby." Is this a correct approach to the problem ? When <ORG> spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, did they have in their mind the Transfer of Property Act as it stood actually in the Statute Book and not as it would have stood with such a proviso added ? Is it not proper to bear in mind in this connection that the Bombay Tenancy Act was intended to benefit the peasants and to improve the cultivation of lands ?

18. In interpreting provisions of such beneficial legislation the <ORG> always lean in favour of that interpretation which will further that beneficial purpose of that legislation. Is this not an additional ground for thinking that in adopting s. 3 the provisions of Chapter V of the Transfer of Property Act, 1882, the <ORG> had the intention of applying these provisions to all tenancies to which the Bombay Tenancy Act itself apply irrespective of the fact whether these tenancies were created before April 1, 1930, or not ? It was contended therefore that even in so far as the claim for possession was based on the ground of forfeiture under the terms of the lease it was necessary for the landlord to prove that he had given notice in writing to the lessee of his intention to determine the lease. <ORG> took the view that the plaintiff-respondent must fail in his application for possession because he had failed to terminate the tenancy by notice before taking proceedings for ejectment. Is the conclusion wrong and if so, is such error apparent on the face of the record ? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of <ORG> on the question of notice is correct or not. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion <ORG> was wrong in thinking that the alleged error in the judgment of <ORG>, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.

19. For the reasons stated above the judgment and order of <ORG> cannot be sustained. We, therefore, allow the appeal and set aside the order of <ORG> issuing a writ of certiorari, quashing the order of the <ORG> and restoring the order of the <NAME>, and we restore the order of the Bombay Revenue <ORG>.

20. The appellant will get his costs here and in <ORG>.

21. Appeal allowed.