JUDGMENT <NAME>, J.

1. At the instance of the Commissioner of Income-tax Gujarat-I, Ahmedabad, <ORG>, Ahmedabad, Bench 'A' (the "<ORG>" for short), has made the present reference to this court under section 256(1) of the Income-tax Act, 1961 ("the Act" for short), as the <ORG> was satisfied that a question of law arises out of the order dated May 25, 1980, passed by it in Income-tax Appeal No. 51/Ahd. of 1979.

2. The reference has been made in the background of the following facts :

3. The assessee, <ORG>, Ahmedabad, is a trust admittedly recognised by the income-tax authority as a charitable trust exempt under section 11 of the Act. The assessee submitted a return of income for the assessment year 1974-75. Some of the shares held by the assessee-trust belonged to the companies in which persons referred to in section 13(2) of the Act had substantial interests. The net dividend referable to such shares was worked out at Rs. 57,007. The Income-tax Officer, while computing the gross income, took into consideration the dividend income of Rs. 57,007 as well as Rs. 17,028, which was tax deducted at source by the companies, and assessed the assessee accordingly.

4. The assessee preferred an appeal before the Appellate Assistant Commissioner of Income-tax, Ahmedabad, Range-7, Ahmedabad, who took the view that an amount of Rs. 57,007 was assessable in the hands of the assessee and not in amount of Rs. 17,028 which was the amount of tax deducted at source by the companies who had paid the dividend.

5. The <ORG>, in the <ORG>'s appeal, found that the sum of Rs. 57,007 also could not have been brought to tax in the present case, as the provisions of section 13(2)(h) of the Act were not applicable to the facts of the present case. The <ORG> took the view that the claim of the revenue to tax the extra amount of Rs. 17,028 was without any substance and, therefore, dismissed the appeal.

6. The Commissioner of Income-tax, therefore, submitted an application under section 256(1) of the Act requiring the <ORG> to draw up a statement of case and refer the question of law for the opinion of <ORG>. The <ORG> was satisfied that a question of law arose out of the order passed by it in A. T. A. No. 51/Ahd. of 1979 and, therefore, the <ORG> drew up the statement of case and has made reference of the following question of law for the opinion of the High court :

"Whether, on the facts, and in the circumstances of the case, the provisions of section 13(2) were applicable so as to bring to tax the net dividend of Rs. 57,007 and tax deducted at source of Rs. 17,028?"

7. Reasons :

(1) The <ORG> has recorded a finding a fact that the dividends on shares in the present case constituted the initial corpus of the trust. This is a finding of fact which is not challenged in the present reference. As the amount of dividends was received on the shares which initially constituted the corpus of the trust, it cannot be said that the income was derived by way of investment of funds of the trust. The question whether the dividend received on the shares is entitled to exemption when the trust continues to hold the shares in the relevant previous year has been considered by this court in the case of <CITATION>  173 ITR 248. In the facts of that case, it was found that the assessee, which was a public charitable trust, received as donation certain shares and the question was whether the assessee-trust had invested its funds purchasing the shares in question or not. The assessee-trust in the said case has received Rs. 36,036 by way of dividends in respect of said shares in the previous year and the claim for exemption was rejected by the Income-tax Officer by holding that the right of the assessee-trust to exemption under section 11 of the Act was forfeited. The said order was confirmed by the Appellate Assistant Commissioner. However, the <ORG> reversed the said order. On a reference, <ORG> has held that, admittedly, the assessee-trust did not invest its funds in purchasing the shares in question and it was the donor who had purchased the shares. It is further held that the shares, after they were purchased by the donor, were donated to the assessee-trust and the assessee-trust continued to held those shares in the previous year, but for that reason, it could not be said that it was an investment made out of its own funds that was continued. Ultimately, it has been held that section 13(2)(h) was not applicable and the dividends received on the shares by the assessee were entitled to exemption.

(2) On a plain reading of clause (h) of sub-section (2) of section 13 of the Act, it is clear that it covers investment of trust funds in any concern in which any of the persons specified in sub-section (3) has substantial interest. In the fact of the case, the dividend was received on the shares which constituted the initial corpus of the trust and, therefore, could not have been brought under the provisions of section 13 of the Act. The <ORG> was right in holding that the provisions of section 13(2)(h) of the Act were not applicable to the facts of the present case in view of the holding of the assessee-company. In our view, therefore, on the facts and in the circumstances of the case, the provisions of section 13(2) of the Act were not applicable so as to bring to tax the net dividend of Rs. 57,007 and the tax deducted at source of Rs. 17,028.

(3) The question referred to us is answered in the negative, i.e., in favour of the assessee and against the <ORG>.

8. The reference stands accordingly disposed of with no order as to costs.


JUDGMENT <NAME>, J.

1. This is an appeal, by special leave, against the judgment of <ORG> confirming the conviction of the appellant of an offence under Section 302 read with Section 34 of the I.P.C. and imposing the sentence of imprisonment for life for the offence by the Sessions Judge, <NAME>.

2. The prosecution case was as follows. On 4-9-1969 at about 5 p.m. <NAME> of village Sabarwas was going out of his house and when he reached near the naubra of <NAME>, he saw <NAME> and asked him to tell as to when his turn of water would commence. <NAME> replied that he would tell about that shortly and went towards his house. <NAME> and <NAME>, having lathis with them came from the back side of <NAME> and gave one lathi blow each to him (<NAME>). They also tried to drag <NAME> but <NAME> (P.W. 4) came there and saved him. At that time, the appellant and <NAME> were sitting on the chabutra in front of their house along with <NAME>. The appellant was armed with <NAME> and <NAME> with a gun which belonged to <NAME>. The appellant and <NAME> shouted to <NAME> and <NAME> to drag <NAME> to that place. <NAME> and <NAME> dragged <NAME> to that place. <NAME> and <NAME> dragged <NAME> for 2/3 karama. At that time <NAME> and <NAME> reached there. <NAME>, <NAME> and <NAME> intervened and prevented <NAME> and <NAME> from dragging <NAME> further. The appellant and <NAME>, followed by <NAME>, came to-wards <NAME> and when they were at a distance of 5/6 karama, the appellant exhorted <NAME>, to shoot at <NAME>. <NAME> thereupon fired at <NAME> but by that time <NAME>'s daughter Mst. <NAME> came there and the shot hit her. Mst. <NAME>, on receipt of the shot fell down. The appellant again exhorted <NAME> to fire at <NAME> because the first shot did not hit <NAME> and when <NAME> tried to reload the gun, <NAME> snatched the gun from him. The appellant aimed his <NAME> towards <NAME> but he warded it off by the gun in his hands which was broken as a result of the blow. <NAME> tried to snatch the gun from <NAME> but in the meantime, <NAME>, son of <NAME> came there and gave a lathi blow on the head of <NAME>. The appellant, <NAME>, <NAME>, <NAME> and <NAME> then went towards the house of appellant. <NAME> and others brought Mst. <NAME> to the house. She was alive at that time. The injuries of <NAME> were bandaged. No arrangement for the conveyance to take her to the hospital could be made. <NAME> died at 7.30 p.m.

3. After the death of Mst. <NAME> <NAME> left for the Police Station and lodged the first information report at 2 A.M. which was recorded by <NAME> P.S. BHUNA. The Sub-Inspector accompanied by <NAME> came to the spot at 5 A.M. He found the dead body of Mst. <NAME> lying at the house of <NAME>. He prepared the imputes report and sent the dead body for post-mortem examination. <NAME> also produced the gun and the cartridge (empty) before the Sub-Inspector who took them into possession. <NAME>, S.I. arrested the accused on September 12, 1969, from near the village Kumharia, and after the usual investigation, the accused were challaned.

4. On the basis of the evidence of the witnesses, the trial court found that the following facts were established. <NAME> (PW-10) is the son of <NAME> (PW-3) and <NAME> (PW-5) is the son of jot <NAME> brother of <NAME> Lal who was the grand father of Thandu, <NAME> (PW-4) is the great grand son of <NAME> brother of <NAME> Lal and Jot <NAME> About 1/2 years prior to the date of the occurrence, <NAME> and <NAME>, sons of <NAME>, who were in army service had purchased land in village Sabarwas for Rs. 35,000/- and at the time of the purchase, the land was under the cultivating possession of <NAME> father of <NAME> accused. <NAME> and <NAME> made an application for ejectment of <NAME> in <ORG> and this application was pending at the time of the occurrence on August 26, 1969, the appellant, <NAME>, <NAME> and <NAME> along with <NAME> and <NAME> father of <NAME> were challaned under sec 107/150 Cr.P.C . and on the same day <NAME>, one <NAME> and three other persons were challaned under Section 107 / 150 . and these cases were pending at the time of the occurrence. <NAME> had filed a complaint against the appellant, <NAME>, <NAME> and his father <NAME> and <NAME> and his father <NAME> for causing injuries to his son <NAME> which was also pending. <NAME> and <NAME>, sons of <NAME> and others were also challaned for causing injuries to the appellant before the occurrence and that case was still pending.

5. These circumstances, according to the trial court, proved that there was enmity between <NAME> and the accused.

6. As regards the occurrence, the findings of the trial Court were : <NAME> and the appellant were sitting in front of their house when <NAME> and <NAME> gave one lathi blow each to <NAME>. <NAME> shouted to these to drag <NAME> towards them and apparently, the intention of both of them was to give him further blows. Since <NAME> was not allowed to be dragged by <NAME>, <NAME> and <NAME>, both <NAME>, the appellant and <NAME> came followed by <NAME> in that direction. At that time <NAME> was armed with a gun which belonged to <NAME> and the appellant with a jaili. The appellant shouted to <NAME> that he should fire at <NAME>. <NAME> fired the gun which unluckily hit <NAME> who happened to come there on hearing the shout. The appellant did not stop there He again incited <NAME> to make another shot at <NAME>. But before <NAME> could shoot, the gun was snatched away from the hand of <NAME> by <NAME>. Then the appellant aimed his Jaili towards <NAME> but he warded it off by the gun which was broken as a result of the blow.

7. <ORG>, in appeal, after discussing the evidence, confirmed those findings.

8. Counsel for the appellant contended that all the material witnesses examined in the case were either related to <NAME> or interested in him and the disinterested neighbours who had seen the occurrence were not examined. There is no evidence that any person other than PWs 3, 4 and 5 saw the cocuerence. PWs. 3, 4 and 5 have been believed by <ORG> as well as by <ORG>. We see no force in the contention that because neighbours residing near the place of occurrence have not been examined therefore these witnesses should not have been believed.

9. In this connection it may be noted that <NAME> filed a petition for leave to appeal to this <ORG>. That was dismissed. It would be incogruous if the <ORG> were to come to the conclusion that the occurrence did not take place as stated by the prosecution witnesses.

10. The acts of the appellant spoken to by PWs. 3, 4 and 5 would clearly show that he had common intention with <NAME> to commit the murder of <NAME> with whom they were on inimical terms. If the appellant had only shouted <NAME>, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by <ORG> would clearly indicate that he was guilty of the offence under Section 302 read with Section 34 .

11. Counsel for the appellant submitted that the charge against the appellant was under Section 302 read with Section 149 and therefore, his conviction under Section 302 read with Section 34 was illegal. We do not think that there is in any substance in this contention.

12. In <NAME> and Anr. v. The State of Punjab <NAME>1954) SCR 904 speaking for the <ORG>, held :

.... It is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34 . If the common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34 . could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to Section 34 when the charge is only under Section 149 .

Whether such recourse can be had or not must depend on the facts of each case.

13. The findings of <ORG> as confirmed by <ORG> would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with Section 34 and we do not see how the appellant was prejudicied.

14. We have no hesitation in holding that <ORG> was right in its conclusion that as the appellant had common intention with <NAME> to murder <NAME>, there was no illegality in convicting him under Section 302 read with Section 34 .

The appeal is dismissed.


PETITIONER: <NAME> AND ANOTHER Vs. RESPONDENT: THE STATE OF DELHI. DATE OF JUDGMENT: 26/05/1950 BENCH: <NAME>, SAIYID BENCH: <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, B.K. CITATION: 1950 AIR 129 1950 SCR 605 CITATOR INFO : R 1951 SC 270 (4) RF 1952 SC 329 (3,4) RF 1957 SC 620 (3,5,7) RF 1958 SC 578 (129,151) F 1959 SC 395 (13,40) R 1960 SC 633 (9) RF 1962 SC 305 (25) R 1962 SC 955 (21) MV 1966 SC 740 (48) RF 1967 SC1643 (227) RF 1971 SC2486 (8,13,14) E 1973 SC 106 (16) RF 1986 SC 515 (22,24,33,97) RF 1989 SC 190 (11) ACT: Constitution of India, Art. 19 , cls. (1) (a) and (2)--Fundamental right of freedom of speech and expression--Law imposing pre-censorship on newspapers for securing public safety and preventing public disorder--Validity--Matter disturbing public safety or causing public disorder, whether "undermines the security of, or tends to over* throw, the <ORG>"--Scope of Art. 19 , cl. (2)--East Punjab Public Safety Act, 1949, sec. 7 (1) (c)--Validity. HEADNOTE: Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi- cation be submitted for scrutiny." Held per <NAME>, <NAME>, <NAME>, <NAME> and <NAME> dissenting) that inasmuch as s. 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by art. 19 (1.) (a) of the Consti- tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the <ORG>" within the meaning of the saving provisions contained in cl. (9.) of art. 19 and was therefore unconstitutional and void. <NAME> v. The <ORG> ( S.C.R. 594) followed. Per <NAME> The expression "public safety" has, as a result of a long course of legislative practice acquired a well-recognised meaning and may be taken to denote safety or security of the <ORG>; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the <ORG> yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener- al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para- phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the <ORG> and as s. 7 (1) (c) of the im- pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of art. 19 (2) of the Constitution. Held by <ORG> Court.--The imposition of pre-censor- ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by art. 19 (1)(a). Black- stone's Commentaries referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. XXIX of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are stated in the judgment.

<NAME> (<NAME>, with him) for the petition- er.

<NAME>, Attorney-General for India, (<NAME>, with him) for the respondent.

1950. May 26. The judgment of <NAME>, <NAME>, <NAME>, <NAME> and <NAME> was deliv- ered by <NAME> J.

<NAME> delivered a separate dissenting judgment, <NAME> is an application under arti- cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the <ORG> of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7 (1) (c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order:

"Whereas the Chief Commissioner, Delhi, is satisfied that <ORG>, an English weekly of Delhi, has been pub- lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.

Now there more in exercise of the powers conferred by section 7 (1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, <NAME>, Chief Commissioner, Delhi, do by this order require you <NAME>, Printer and Publisher and <NAME>, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., <ORG>, <ORG> and <ORG> to the Provincial Press Officer, or in his absence, to Superintend- ent of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m. and 5 p.m. on work- ing days."

The only point argued before us relates to the consti- tutional validity of section 7 (1) (c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety and maintenance of public order." Section 7 (1) (c) under which the aforesaid order purports to have been made reads (so far as material here) as follows :--

"<ORG> or any authority authorised by it in this behalf if satisfied that such action is neces- sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a print- er, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny."

The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19 (1) (a) of the Constitu- tion inasmuch as it authorises the imposition of a restric- tion on the publication of the journal which is not justi- fied under clause (2) of that article.

There can be little doubt that the imposition of precen- sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). As pointed out by <NAME> in his Commentaries "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press(1). The only question therefore is whether section 7 (1)(c) which authorises the imposition-of such a restriction falls within the reservation of clause (2) of article 19. As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950(2) was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of <ORG> er, Delhi, dated the 2nd March, 1950.

(1) Blackstone's Commentaries, Vol. IV, pp. 151, 152. (2) <NAME> v. The State of Madras, supra p. 594.

<NAME> question raised in this case relates to the validity of 'section 7 (1) (c) of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi), which runs as follows :-

"<ORG> or any authority authorised by it in this behalf if satisfied that such action is neces- sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to a print- er, publisher or editor--

(c) require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny;"

It should be noted that the provisions of sub-clause (c) arc not in general terms but are confined to a "particular subject or class of subjects," and that having regard to the context in which these words are used, they must be connect- ed with "public safety or the maintenance of public order."

The petitioners, on whose behalf this provision is assailed, are respectively the printer (and publisher) and editor of an English weekly of Delhi called <ORG>, and they pray for the issue of writs of certiorari and prohibi- tion to the Chief Commissioner, Delhi, with a view' 'to examine and review the legality" of and "restrain the operation" of and "quash" the order made by him on the 2nd March, 1950, under the impugned section, directing them "to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies..." The order in question recites among other things that the Chief Commissioner is satisfied that the <ORG> has been publishing highly objectionable matter constituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order. It is contended on behalf of the petitioners that notwithstanding these recitals the order complained against is liable to be quashed, because it amounts to an infringement of the right of freedom of speech and expres- sion guaranteed by article 19 (1) (a) of the Constitution. Articles 19 (1) (a) and (2), which are to be read together, run as follows :-

19, (1) All citizens shall have the right

(a) to freedom of speech and expression;

* * * * (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the <ORG> from making any law relating to, libel, slander, defamation, contempt of <ORG> or any matter which offends against decency or morality or which under- mines the security of, or tends to overthrow, the <ORG>."

It is contended that section 7 (1)(c) of the Act, under which the impugned order has been made, cannot be saved by clause (2) of article 19 of the Constitution, because it does not relate to any matter which undermines the security of, or tends to overthrow, the <ORG>. Thus the main ground of attack is that the impugned law is an infringement of a fundamental right and is not saved by the so-called saving clause to which reference has been made.

There can be no doubt that to impose pre-censorship on a journal, such as has been ordered by the Chief Commissioner in this case, is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitu- tion, and the only question which we have therefore to decide is whether clause (2) of article 19 stands in the way of the petitioners.

The East Punjab Public Safety Act, 1949, of which sec- tion 7 is a part, was passed by <ORG> in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, is read with Entry 1 of List II of the Seventh Schedule to that Act, which includes among other matters "public order." This expression in the general sense may be construed to have reference to the maintenance of what is generally known as law and order in the Province, and this is confirmed by the words which follow it in Entry 1 of List II and which have been put within brackets, viz., "but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power." It is clear that anything which affects public tranquillity within the <ORG> or the Province will also affect public order and the <ORG> Legislature is therefore competent to frame laws on matters relating to public tranquillity and public order. It was not disputed that under the Government of India Act, 1935 (under, which the impugned Act was passed) it was the responsibility of each Province to deal with all internal disorders whatever their magnitude may be and to preserve public tranquillity and order within the Province. At this stage, it will be convenient to consider the meaning of another expression "public safety" which is used throughout the impugned Act and which is also chosen by its framers for its title. This expression, though it has been variously used in different contexts (see the Indian Penal Code , Ch. XIV), has now acquired a well-recognized meaning in relation to an Act like the impugned Act, as a result of a long course of legislative practice, and may be taken to denote safety or security of the <ORG>. In this sense, it was used in the Defence of the Realm (Consolidation) Act, 1914, as well as the Defence of India Act. and this is how it was judicially interpreted in <NAME> v. Governor of Wormwood Scrubbs Prison(1). The headnote of this case runs as follows "By section 1 of the Defence of the Realm (Consolidation) Act, 1914, power was given to His Majesty in Council 'during the continuance of the present war to issue regula- tions ...... for securing the public safety and the de- fence of the realm' :--

(1) [1920] 2 K.B. 305.

Held, that the regulations thereby authorized were not limited to regulations for the protection of the country against foreign enemies, but included regulations designed for the prevention of internal disorder and rebellion "

Thus 'public order' and 'public safety' are allied matters, but, in order to appreciate how they stand in relation to each other, it seems best to direct our atten- tion to the opposite concepts which we may, for convenience of reference, respectively label as 'public disorder' and 'public unsafety'. If 'public safety' is, as we have seen, equivalent to 'security of the <ORG>', what I have designat- ed as public unsafety may be regarded as equivalent to 'insecurity of the <ORG>'. When we approach the matter in this way, we find that while 'public disorder' iS wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety' (or insecurity of the <ORG>), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the <ORG>.

In order to understand the scope of the Act, it will be necessary to note that in the Act "maintenance of public order" always occurs in juxtaposition with "public safety", and the Act itself is called "The East Punjab Public Safety Act." The prominence thus given to 'public safety' strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the <ORG>, or cases in which, owing to some kind of emergency or a grave situation having arisen, even public disorders of comparatively small dimensions may have far- reaching effects on the security of the <ORG>. It is to be noted that the Act purports to provide "special measures to ensure public safety and maintenance of public order." The words "special measures" are rather important, because they show that the Act was not intended for ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal Code and other existing laws, and with these the Act which purports to be of a temporary Act is not apparently concerned. It is concerned with special measures which would presumably be required for special cases or special situations. Once this important fact is grasped and the Act is viewed in the proper perspective, much of the confusion which has been created in the course of the arguments will disappear. The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression "public order," used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insig- nificant breaches or those of a grave or serious nature. This is, in my opinion, approaching the case from a wrong angle. The Act is a piece of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures.

It was argued that "public safety" and "maintenance of public order" are used in the Act disjunctively and they are separated by the word "or" and not "and," and therefore we cannot rule out the possibility of the Act providing for ordinary as well as serious cases of disturbance of public order and tranquillity. This, as I have already indicated, is a somewhat narrow and technical approach to the question. In construing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so construed as to bear a reasonable meaning consistent with its validity. We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should not be confused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order, In my opinion, the word "or" is used here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used almost inter- changeably in the context. I think that "public order" may well be paraphrased in the context as public tranquillity and the words "public safety" and "public order" may be read as equivalent to "security of the State" and "public tran- quillity."

I will now advert once more to clause (2) of article 19 and state what I consider to be the reason for inserting in it the words "matter which undermines the security of, or tends to overthrow, the <ORG>." It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings: (see Halsbury's Laws of England, 2nd Edition, Vol. II, page 391). This is prac- tically what has been said in clause (2) of article 19 , with this difference only that instead of using the words "law relating to sedition," the framers of the Constitution have used the words mentioned above. It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be.

The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in <NAME> v. The King(1) which has been quoted again and again and in which <NAME> laid down that public disor- der, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and "the acts or words complained of must either incite to disorder or (1) [1942] F.C.R. 38.

must be such as to satisfy reasonable men that is their intention or tendency." For this view, the learned Chief Justice relied on certain observations of <NAME> in R.v. Sullivan (1), and he also added that he was content to adopt "the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law." There is no doubt that what <NAME> has stated in that case represents the view of a number of Judges and authors and was also the view of Sir <NAME> in regard to whom <NAME> in his charge to the jury in a case relating to the law of sedition <NAME>. v. Burns(2) said :--

"The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by <NAME> who has undoubtedly a greater knowledge of crimi- nal law than any other Judge who sits upon the Bench, and what he has said upon the subject of sedition was submitted to the other Judges, who sometime back were engaged with him in drafting a criminal code, and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present."

The decision of <NAME> held the field for several years until <ORG>, dealing with a case under the Defence of India Rules, expressed the view in <CITATION> (3) that the test laid down by the learned Chief Justice was not applicable in India where the offence under section 124A of the Indian Penal Code should be construed with reference to the words used in that section. They also added :--

"The word 'sedition' does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A , and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known.

(1) [1868] 11 Cox c.c. 44. (2) [1886] 16 cox 855. (8) 74 I.A.

There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition as we have in the present case. Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that 'the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency."

The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19 (2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquil- lity and was connected in some way or other with public disorder; and, on the other hand, there was the pronounce- ment of <ORG> that sedition as defined in the Indian Penal Code did not necessarily imply any inten- tion or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedi- tion such a serious offence. That sedition does undermine the security of the <ORG> is a matter which cannot admit of much doubt. That it undermines the security of the <ORG> usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the <ORG>.

It will not be out of place to quote here the following passage from Stephen's Criminal Law of England (Vol. II, pp. 242 and 243) :--

"It often happens, however, that the public peace is disturbed by offences which without tending to the subver- sion of the existing political constitution practically subvert the authority of the <ORG> over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the <NAME> riots in 1780 are instances of this kind. No definite line can be drawn between insur- rections of this sort, ordinary riots, and unlawful assem- blies. The difference between a meeting stormy enough to cause well-founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation's history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries, All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.

Another class of offences against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious conspiracies, libels or words spoken.

Under these two heads all offences against the internal public tranquillity of the <ORG> may be arranged."

This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which affect tranquillity of a considerable number of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it, such as seditious utter- ances, seditious conspiracies, etc. Both these classes of offences are such as will undermine the security of the <ORG> or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authorita- tive opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the <ORG>. In principle, then, it would not have been logical to refer to sedition in clause (2) of article 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the <ORG>. It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matters which are as detrimental to the security of the <ORG> as sedition. If the Act is to be viewed as I have suggested, it is difficult to hold that section 7 (1) (c) falls outside the ambit of article 19 (2). That clause clearly states that nothing in clause (1) (a) shall affect the operation of any existing law relating to any matter which undermines the security of, or tends to overthrow, the <ORG>. I have tried to show that public disorders and disturbance of public tranquillity do undermine the security of the <ORG> and if the Act is a law aimed at preventing such disorders, it fulfils the requirement of the Constitution. It is needless to add that the word "<ORG>" has been defined in article 12 of the Constitution to include "the Government and Parlia- ment of India and the Government and Legislature of each of the <ORG>s and all local or other authorities within the territory of India or under the control of the Government of India."

I find that section 20 of the impugned Act provides that <ORG> may by notification declare that the whole or any part of the Province as may be specified in the notification is a dangerously disturbed area. This provision has some bearing on the aim and object of the Act, and we cannot overlook it when considering its scope. It may be incidentally mentioned that we have been informed that, under this section, Delhi Province has been notified to be a "dangerously disturbed area."

It must be recognized that freedom of speech and expres- sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard- ed by the <ORG>. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of modern jurists is to deprecate censorship though they all agree that "liberty of the press" is not to be confused with its "licentiousness." But the Constitution itself has pre- scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case comes within those limits. In my opinion, the law which is impugned is fully saved by article 19 (2) and if it cannot be successfully assailed it is not possible to grant the remedy which the petitioners are seeking here.

As has been stated already, the order which is impugned in this case recites that the weekly <ORG> has been publishing highly objectionable matter constituting a threat to public law and order" and that the action which it is proposed to take against the petitioners "is necessary for the purpose of preventing or combating activities prejudi- cial to public safety or the maintenance of public order." These facts are supported by an affidavit sworn by the Home Secretary to the Chief Commissioner, who also states among other things that the order in question was passed by the Chief Commissioner in consultation with <ORG>, which is an independent body elected by <ORG> and is composed of representatives of some of the leading papers such as <ORG>, <ORG>, etc. In my opinion, there can be no doubt that the Chief Commissioner has purported to act in this case within the sphere within which he is permitted to act under the law, and it is beyond the power of this <ORG> to grant the reliefs claimed by the petitioners. In these circumstances, I would dismiss the petitioners' application.

Petition allowed.

Agent for the petitioners: <NAME>.

Agent for the respondent: <NAME>.


JUDGMENT <NAME>, J.

1. This is a reference under Section 64(1) of the Estate Duty Act, 1953. It relates to the Assessment of Estate duty on the accountable persons of the estate of <NAME>, who died on the 11th July, 1959. The deceased was the absolute owner, inter alia, of premises No. 1, Queens Park, Calcutta. On July 1, 1954, he gifted this property by way of settlement on four trustees namely <NAME>, <NAME>, <NAME> and <NAME> for the objects mentioned in the Indenture of Trust. The trustees were to hold the property for the absolute use and benefit of the deceased's two sons, <NAME> and <NAME>, in equal shares during their respective lives and upon the death of any of or both the sons, to be held for the use of the wife or wives of such son or sons with remainder to the male children of the two sons in equal share per stirpes. Provision had been made in the deed of settlement empowering the trustees to grant, amongst other things, lease of the trust property as they thought fit.

2. On the 2nd July, 1954, the trustees leased out the upper portion of the premises to the settlor <NAME> on a monthly rental of Rs. 150/- for a period of five years. The lease was to take effect from the 1st July, 1954, i.e. from the same date as the date of the gift itself. The lease expired on the 30th June, 1959, and as stated above, the deceased died 11 days thereafter, on the 11th July, 1959. The said property continued to be occupied by the deceased as a continuing tenant for the last 11 days of his life.

3. Before the Assistant Controller of Estate Duty two alternative contentions were raised on behalf of the accountable persons. The first contention was that no part of the property could be deemed to pass under Section 10 of the Estate Duty Act. The alternative contention was that only the upper portion of the house could be deemed to pass. The Assistant Controller rejected both the contentions. He took the view that the entire property did pass on the donor's death because continued possession and enjoyment of the property was not immediately assumed by the donees and thenceforward retained to the entire exclusion of the donor or to the entire exclusion of any benefit to him by contract or otherwise.

4. The Appellate Controller of Estate Duty gave his decision against the assessees on the same ground.

5. <ORG> decided the appeal partially in favour of the applicants. It held that upon the donor's death only that part of the property which had been leased out to the donor would be deemed to pass to the accountable persons. The other portion of the property was exempt from estate duty because to that extent bona fide possession and enjoyment had had been assumed by the donees and thenceforward retained by them to the entire exclusion of the donor. The <ORG> also held that it was unrealistic to separate the property in its intangible form from the rights and interests attached to it.

6. On behalf of the Controller of Estate Duty the following question of law was suggested for reference to this Court:

"Whether, oh the facts and in the circumstances of the case, the <ORG> was right in holding that in terms of Section 10 of the Estate Duty Act only that portion of the property at No. 1, Queens Park, Calcutta, which was occupied by the deceased by virtue of the lease dated the 2nd July, 1954, could be deemed to pass on his death and the value thereof only was to be included in the principal value of the estate?"

7. The accountable persons, on the other hand, framed the following question:

"Whether on the facts and in the circumstances of the case <ORG> is right in holding that the deceased was not entirely excluded from bona fide possession and enjoyment of the part or portion of the property at 1, Queens Park, Calcutta, occupied by him by reason of the lease dated July 2, 1954, within the meaning of Section 10 of the Estate Duty Act?"

8. The <ORG> was of opinion that the questions raised on behalf of the parties were counterparts of each other and framed the following question of law and referred it to this Court for opinion:

"Whether on the facts and in the circumstances of the case and on a true interpretation of the provisions of Section 10 of the Estate Duty Act, the <ORG> was justified in holding that only that portion of the property at 1, Queens Park, Calcutta, which was in the occupation of the deceased could be deemed to pass on the death of the deceased and not the whole of the property?"

9. Learned counsel for the Controller argued that having regard to the framing of the question by the <ORG> it was not open to the applicants to contend that no portion of the property was dutiable. From the statement of the case relevant portions whereof I have referred to already, it seems to me, that this argument is of no substance. The <ORG> by the question it has framed intended to cover all the aspects of this case. Just as the Controller can urge that the whole of the property is liable to estate duty the applicants can also submit that no portion of the property is dutiable. The <ORG> it appears has taken into consideration the question suggested by the Controller and the applicants respectively and tried to frame a question of its own. Both the questions have been set out in the statement of the case and then the <ORG>'s question is put forward. In these circumstances, to my mind, it is unreasonable to hold that the applicants before us are debarred from contending that no portion of the property is liable to estate duty.

10. Mr. <NAME>, learned counsel for the applicants, has argued that, the question at issue depends upon the true construction of Section 10 of the Estate Duty Act, 1953, which reads-

"Property taken under any gift whenever made shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise."

11. In the words of <NAME> in Attorney General v. <NAME> (1911) 2 KB 688 at p. 699:

"I think gramatically the words must be construed thus: 'Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift, and of which property bona fide possession and enjoyment shall not have been thenceforward retained by the donee to the entire exclusion of the donor from such possession and enjoyment or of any benefit to him by contract or otherwise."

12. Therefore, according to Mr. <NAME>,' the first thing to be determined is: what is the property taken under the gift? The nature of the right to the property given is important.

13. Mr. <NAME> then relied on a passage in the judgment of Lord <NAME> of Killowen in Commr. for Stamp Duties, New South Wales v. <ORG> (1943) AC 425 at p. 440. Lord <NAME> has said:

"The linking of possession with enjoyment as a composite object which has to be assumed by the donee indicates that the possession and enjoyment contemplated is beneficial possession and enjoyment by the object of the donor's bounty."

14. Learned Counsel proceeded to quote thereafter the following passage from the speech of Lord Simonds in <CITATION> , (1952) AC 15 at p. 29:

"I venture to think that much of the argument that was addressed to the <ORG> in this case and much of the confusion that has arisen in the past op this admittedly difficult branch of the law have been due to the failure to bear in mind that that of which enjoyment is to be assumed and retained and from which there is to be exclusion of the donor and any benefit to him by contract or otherwise is that which is truly given, a proposition which is obvious enough in the case ot two separate estates but more difficult to follow and apply where trusts are declared of a single property which are not completely exhaustive in favour of a donee."

15. For the propositions aforesaid Mr. <NAME> has also relied on the cases of <NAME> v. Commr of Stamp Duties, 1934 AC 61 and the dictum of <ORG> in the case Lang v. <NAME>, (1912) 13 CLR 503.

16. Mr. <NAME> submitted to us that having ascertained the property taken under the gift and whether the donee assumed bona fide possession and enjoyment of that property the next step is to find whether the donor had thenceforth been excluded from the possession and enjoyment of such property.

17. The 'possession and enjoyment' of the property contemplated. Mr. <NAME> says, is the legal possession and enjoyment and not factual or physical and the principle is "the cedent or donor must be entirely excluded from some enforceable right of a benefit of that which was part of his properly before the cession": in other words, an enjoyment by the donor of the same kind as before: vide Lord Advocate v. <NAME> (1906) 8 F. 579 re-affirmed in 1911-2 KB 688 (Supra).

18. In order to bring the case within the scope of the Section, it is not sufficient, states Mr. <NAME>, to take the situation as a whole and find that the donor has been allowed to enjoy substantial advantages which have some relation to the property given: it is necessary to consider the nature and source of each of the advantages and determine whether or not it is a benefit of such a kind as to come within the section: <NAME> v. Commr. of Stamp Duties, New South Wales 1954 AC 57.

19. Mr. <NAME> submits that, the possession and enjoyment from which the <ORG> has not been excluded (or to which he has been inducted) must trench upon or impair and diminish the rights of the donee, in the subject-matter of the gift If a new right in the tangible property is created which does not affect the rights of the donee then the Section is not attracted.

20. Learned counsel then urged that, in order that duty may be levied the burden of proof is upon the taxing authority who must bring the subject within the charge i.e., establish that there was not an entire exclusion of the donor or of any benefit to him by contract or otherwise. The Section does not impose an obligation to pay the duty leaving the accountable person to bring himself within the exception: vide <NAME>'s case 1911-2 KB 688 (Supra).

21. It follows, according to learned counsel, that if there is any doubt as to the nature of the 'possession and enjoyment' granted to the donor being that which he had before the cession then the duty is not exigible.

22. In this case, Mr. <NAME> argued, the gift was of the full right of ownership which did not contain any right as a tenant at the time the gift was made. Therefore, the benefit that may have been conferred on the donor a day after was not referable to the gift itself. The source of the possession and enjoyment under the lease was the lease and not the freehold right which had been given. Before the lease is given the tenant's right does not come into existence and it would be erroneous to say that the leasehold interest in the property was comprised in the freehold interest before the creation of the lease. Hence, the lease when granted does not in any way prejudice or trench upon or impair 'posssession and enjoyment' which the lessor had before the creation of the lease.

23. In the foregoing paragraphs I have set out all the points canvassed before us by learned counsel for the applicants. The law on the subject including the present trend of decisions of <ORG> has been summarised in <NAME>'s "Death Duties", 13th Edition, Volume 1, at pages 210 to 221.

24. For purposes of the present reference the provisions in the Indian Act ( Section 10 of the Estate Duty Act, 1953) and those in the British Act ( Section 59(3) of the Finance Act (1909-1910) and in the Australian Act ( Section 11 of the Administration and Probate Act, 1903), are substantially the' same. The difference, that is there, relevant for us in this reference would be discussed later in this judgment. I propose to rely on the observations made in <NAME>'s book confining myself, however, to the points that arise for our consideration in the instant case.

25. Estate duty is payable in respect of all gifts, made by the deceased in his life time unless, inter alia, (1) the transfer of the property to the donee was only completed; (2) the donee assumed bona fide possession and enjoyment of the property and thenceforward retained such possession and enjoyment; and (3) the deceased was thenceforward entirely excluded from the possession and enjoyment thereof and also from any benefit by contract or otherwise.

26. The first condition is satisfied if the pro perty is vested in trustees for the donee, even though the donor is one of the trustees 1943 AC 425 or the sole trustee 1954 AC 57. This condition has undoubtedly been satisfied in the instant case.

27. For the purpose of the second condition, it is necessary that the donee shall (a) assume, and (b) thenceforward retain the possession and enjoyment of the property. It seems that the donee, or person on his behalf, must assume and retain actual possession and enjoyment, and not merely the legal right thereto; Stamp Duties Commr. of New South Wales v. <ORG>. 1956 AC 512. But presumably where the donor occupies land or enjoys chattels for full consideration such as the payment of a full rent, the receipt of the rent or other consideration by the donee will be regarded in English Law as possession and enjoyment by him if the death was on or after the 29th July, 1959, in view of Section 35(2) of the Finance Act, 1959, which runs thus:

"In the case of property being an interest in land, or being chattels retention or assumption by the said other person or actual occupation of the land or actual enjoyment of an incorporeal right over the land, or actual possession of the chattels shall be disregarded if for full consideration in money or money's worth."

28. Our attention has not been drawn to any provision in the Indian Act similar to the provision in Section 35(2) of the English Finance Act of 1959. There is a finding by the Appellate Controller at page 29 of the paper book that bonafide possession and enjoyment of the property was perhaps assumed by the donees immediately upon the gift." <ORG> also must have come to the same conclusion otherwise its order cannot be justified.

29. In this reference the crux of the matter appears to be whether condition No. 3 stated above has been satisfied. This condition has two limbs: the deceased must be entirely excluded (i) from the property and (ii) from any benefit by contract or otherwise.

30. The distinction between the two limbs or conditions, which has not always been made clear in the earlier cases, some of which have been cited by Mr. <NAME>, was sharply drawn by <ORG> in <NAME> v. Commr. of Stamp Duties of New South Wales, 1958 AC 435, a decision on a similarly worded clause of a New South Wales Statute. In this case, the deceased gave his son a farming property, "Mia Mia", in 1934; in 1935 the deceased the son and another son entered into a partnership agreement as graziers and Stock dealers, on the terms, inter alia, that the deceased should be the Manager and that his decision should be final in all matters relating to the conduct of the business; that the capital should consist of the live stock and plant owned by the partners; that the business should be conducted on their respective holdings (including "Mia Mia"); and that the land held by each partner should be his sole property and he should have the sole and free right to deal with it as he might think fit. The partnership continued till the death of the deceased in 1952, and the property "Mia Mia" was held dutiable as a gift not to his entire exclusion. The main points were:

(1) the deceased was not in fact excluded from the property, but as a partner enjoyed rights over it.

(2) There was an initial out-right gitf of the property not of the property shorn of certain rights (contrast 1934 AC 61).

(3) It was immaterial that the partnership agreement was later than the gift, since the Section required that possession and enjoyment should thereafter be retained to the exclusion of the donor 1956 AC 512.

(4) It was also immaterial that the partnership was "an independent commercial transaction", and that the donor gave full consideration for his rights. If a donor gives a donee a freehold and the donee gives the donor a lease, even at a full rent, the donor is not excluded from the property. ((1912) 13 CLR 503, which was approved).

(5) The question whether the partnership agreement was "related" or "referable" to the gift did not arise: the question is relevant only to the "second limb" of the clause.

(6) It was immaterial that the donee could make no better use of the property. "Where the question is whether the donor has been entirely excluded from the subject matter of the gift that is the single fact to be determined. If he has not been so excluded, the eye need look no further to see whether his non-exclusion has been advantageous or otherwise to the donee." The remarks of Lord <NAME> in 1954 AC 57 do not relate to the "first limb", but to the "second limb" of the clause. In this last mentioned case residence on the property in a managerial capacity had not been regarded as a "reservation" but, in the light of the <NAME> decision it cannot be considered authoritative on the "first limb".

31. It appears from point No. 4 above that <ORG> in <NAME>'s case 1958 AC 435 has fully approved of the decision of <ORG> in (1912) 13 CLR 503. This is the case which has to be carefully considered by us in determining whether Section 10 of the Estate Duty Act, 1953, applies to the facts in the present reference.

32. Section 11 of the Administration and Probate Act, 1903, (Vict) ran as follows:

"Every conveyance or assignment, gift, delivery or transfer of any estate real ot personal and whether made before or after the commencement of this Act, purporting fo operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust or otherwise shall-

(a) if made within twelve months immediately preceding the death of the person so dying; or

(b) if made at any time relating to any property of which property bona fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise be deemed to have made the property to which the same relates chargeable with the payment of the duty payable under the Administration and Probate Acts, as though part of the estate of the donor."

33. In <NAME>'s case (1912) 13 CLR 503 a testa trix was the owner in fee of land in her actual pos session and enjoyment, which she worked as a single property. More than 12 months before her death she gave to her three sons blocks of this land each of which was surrounded by other of the land of the testatrix. The gift was made by conveyances of so much of the land as was under the general law, and by transfers of So much of it as was under the Transfer of Land Acts. On the same day upon which the conveyances and transfers were executed, each of the sons executed a lease for five years of the land given to him to the testatrix at a fair and reasonable rent. After the gifts the lands given continued to be in the actual physical occupation of the testatrix, and to be worked by her with her other lands in the same way as before the gifts. The testatrix died before the expiration of the leases.

34. Let us compare these facts with the salient facts in the reference before us. On the 1st July, 1354, the deceased made a gift of the property by way of settlement on trustees. On the 2nd July, 1954, the trustee leased out the upper portion of the premises to the deceased with effect from the 1st July, 1954, on a monthly rental of Rs. 150/-for a period of five years. The lease expired on the 30th June, 1959; the deceased continued as a tenant; and died on the 11th July, 1959.

35. In <NAME>'s case (1912) 13 CLR 503 <ORG> held that the land so given was chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the testatrix.

36. Viscount <NAME> in <NAME>'s case 1958 AC 435 has fully considered the effect of the decision in <NAME>'s case, (1912) 13 CLR 503 and makes the following observations:

"As long ago as 1912 in Lang v. <NAME> (1912) 13 CLR 503 (a case whether a testatrix gave certain blocks of land to her son and on the same day took leases from them of the same land) <NAME>, <NAME> said: 'the lease, however, gave to the doner possession and enjoyment of the land itself, which is a simple negation of exclusion, and bring the case within the statutory liability. It was argued that as the rent was the full value, the lessee's possession and occupation were not a benefit. The argument is unimportant because the lease, at whatsoever rent, prevents the entire exclusion of the donor'. This view of the sub-section has never been departed from and their Lordships respectfully adopt the words of <NAME>, <NAME> in the present case. It is irrelevant that the donor gave (if he did give) full consideration for his right as a member of the partnership to possession and enjoyment of the land that he had given to his son.": Vide 1958 AC 435 at p. 447.

37. I have given my anxious consideration to the arguments of Mr. <NAME> that unless something is carved out of the subject-matter of the gift and given to the donor the liability under the statute is not attracted. To my mind the correct view is that so far as the upper portion of premises No. 1, Queens Park is concerned the lease gave to the donor possession and enjoyment of the property itself which is a negation of exclusion and brings the case within the statutory liability. The lease at whatsoever rent prevents the entire exclusion of the donor envisaged by Section 10 of the Estate Duty Act, 1953. This was the view of <NAME>, J. in <NAME>'s case, (1912) 13 CLR 503 approved by <ORG> in <NAME>'s case, 1958 AC 435 and it is this view which applies to the portion of premises No. 1, Queens Park, leased out by the trustees to the donor. As to whether the other portion of the property was also affected by this lease we shall consider later in this judgment.

38. The principles decided in <NAME>'s case, (1912) 13 CLR 503 has, however, been substantially negatived in England, as respects, deaths on and after the 29th July, 1959. Under Section 35(2) of the Finance Act, 1959, the donor's actual occupation of the land, enjoyment of an incorporeal right over the land (e.g. Shooting or fishing rights or a right to take timber), or possession of the chattels is to be disregarded if for full consideration in money or moneys worth. But as I have said no such provision exists in the Indian Statute. There is no difficulty, it seems, therefore, in drawing upon the principles laid down in <NAME>'s case, (1912) 13 CLR 503 for construing the relevant provisions in lection 10 of the Estate Doty Act, 1953. Accord-ingly, it appears, that subject to Section 3542 ) of the English Finance Act, 1959, in the case of land and chattels, the condition regarding entire exclusion of the donor from the property would be infringed where the donor's benefit consists of any form of possession or enjoyment of the gifted property itself, or of property representing it. In other words, the "first limb" of the condition may be infringed if the donor occupies OK enjoys the property or its income, even though he has no right to do so which he could legally enforce against the donee. It is not entirely easy to reconcile this view with the decisions in <NAME>'s case, (1906) 43 ScLR. 465 and in <NAME>'s case, (1911) 2 KB 688 (the. decision on which Mr. <NAME> placed strong reliance) in which cases the deceased either released with the decision in <NAME>'s case, (1906) 43 SC LR 465) or made an absolute gift of (the <NAME>), a house and furniture to a relative, without any stipulation, but continued to live there as the donee's guest until his death more than five years later, and it was held that duty was not chargeable. In the <NAME> case, 1911-2 KB 688 <NAME> in his remarks at p. 700 of the report, appears to have considered that the deceased's exclusion from the property itself (the first limb of the condition) would, like his exclusion "from any benefit by contract or otherwise" (the second limb), be achieved unless he had "some enforceable right". It is submitted in <NAME>'s book that if by this expression <NAME> meant a legally enforceable right against the donee, his view cannot be sustained, so far as the first limb is concerned, in the light of the contrary authority noted above. The requirement of enforceability in this sense, derived apparently from the word "contract" in the second limb, seemingly has no relevance to the first limb. It may be observed, however, that although in cases like the Permanent Trustee case 1956 AC 512 the donee could at any time have terminated the arrangement under which the deceased was not excluded, nevertheless, so long as the arrangement continued, the deceased had a specific right; whereas in the <NAME> case, (1906) 43 ScLR 465 and the <NAME> case, 1911-2 KB 688 it appears that there was no specific arrangement at all and the deceased was simply the guest of the donee. In <NAME> case, (191!) 2 KB 688 for example. <NAME> said (at p. 701 of the report) that there was no understanding that the deceased should be permitted to reside in the house.

"in the sense of an arrangement, or as it is called an honourable understanding, which is not legally enforceable. I have no doubt that neither the donor nor the donee contemplated for. one moment that the former would under any circumstances be turned out of the house: but there was no discussion on the point, and the donor befors he executed the Deed was fully aware that after executing the Deed he would be at the defendant's mercy, and was fully content to rely upon the affection which the defendant Bore towards his grand-uncle and benefactor. Upon this affection, and not upon Any contract or honourable understanding, the donor was content to rely. . . ." The difference indicated may, according to the Editor of <NAME>'s book, be sufficient to distinguish the two lines of cases. It is also stated in this text book that, notwithstanding the sweeping character of the term "entire exclusion", there must, it is thought, be some limit to its meaning: the condition cannot be infringed merely because the donor paid occasional visits to the donee, and the <NAME> and <NAME>'s decisions ((1906) 43 Sc LR 465 and 1911-2- KB 688) if still valid, indicate that more permanent residents as a guest does not offend the condition, at any rate if there was no "honourable understanding". On the other hand, specific rights of lodging in the property secured to the donor at the time of the transfer are a Breach of the condition: <CITATION> , 1936 IR 342, where the deceased retained the right to the exclusive use of a room and "the right of his support therein."

39. I have discussed alt the authorities which appear to me to be relevant for answering the question raised in this reference. These authorities lead me to the following conclusions:

(a) In order to avoid the mischief of Section 10 of the Estate Duty Act, 1953, it must be established that the donee not only assumed bona fide possession and enjoyment of the property taken under the gift but also thenceforward retained the said property to the entire exclusion of the donor or any benefit to him by contract or otherwise.

(b) The single factor to be considered is whether the donor has been entirely excluded from the subject matter of the gift.

(c) If the donor has not been entirely excluded then it is not at all relevant to consider whether the non-exclusion of the donor has been advantageous to the doaee or not. In other words, it is immaterial that the donee was receiving full consideration for what the donor was enjoying or possessing.

(d) Possession and enjoyment by the donor have to be judged in the light of the factual position alone.

(e) The "benefit to him by contract or otherwise" must, however, be based on enforceable rights.

39a. Applying the above principles to the facts of this case I reiterate that the upper portion of premises No. 1, Queens Park, Calcutta, which was leased out by the trustees to the donor, does not escape the consequences indicated in Section 10 of the Estate Duty Act. We have now to consider whether this section can be attracted to the whole of the property on the facts of this case.

40. Section 10 of the Estate Duty Act, 1953, provides as we have already seen, that property taken under any gift, whenever made, shall be deemed to pass on the donor's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise.

41. The expression "to the extent" introduced into the Indian Statute is a departure from the provisions in the British and Australian Acts. So far as this aspect of the question is, therefore, concerned no assistance can be derived from decisions in other countries. Mr. <NAME>, learned counsel for the Controller says that this expression does not indicate any quantum or degree of curtailment of interest. It is merely descriptive of the nature of the property given to the donee. I am not inclined to accept this argument. That is not the plain meaning of the expression at all and there is no reason why the meaning should be strained in the manner suggested by Mr. <NAME>. In any event the doubt, if any, has been resolved by the statement of objects and reasons whh respect to Section 10 of the Estate Duty Act, 1953, circulated to the members of <ORG>. The statement runs thus:

"This clause brings under charge property given in gift, but in which the donor retains some interests by contract or otherwise. Where the donor retains such interests in a part of the property only, estate duty is payable on that part only ....."

42. It is abundantly clear, therefore, that in this case estate duty is payable by the accountable persons only on that portion of premises No. 1, Queens Park, Calcutta, which was in the occupation of the deceased as a lessee.

43. The answer to the question framed is in the affirmative. Each party will bear and pay its own costs of the reference. Certified for the counsel as against respective clients.

<NAME>, J.

44. I agree.


JUDGMENT

1. In one of these cases the plaintiffs are the minor children of one, <NAME>, a railway passenger who was killed in the Mangapatam railway accident. The plaintiffs sue with their mother, the widow of the deceased, as their next friend; in the other suit the plaintiffs are the minor children of a Hindu named <NAME>, another Railway passenger who lost his life in the same accident. They also sue with their mother, the widow of the deceased as their next friend. In neither case is there any executor or administrator of the deceased. The suits are brought against <ORG> for compensation under Act XIII of 1855 and were instituted after the expiry of one year from the death of persons referred to. The question is whether the suits are time-barred. The answer to this question must be in the affirmative with reference to Art, 21 of Schedule IT of the Indian Limitation Act unless the bar is saved by the provisions of Sections 7 or 8 of the Act.

2. Before proceeding to consider the applicability of those provisions to the cases, it is necessary to see what is the precise nature of the right conferred by Act XIII of 1855 under which the claims are made. As stated in the preamble of the Act itself the relations of a person whose death was caused by the wrongful act of another were not, prior to its enactment, entitled to claim compensation on account of the death. The right to claim compensation in respect of such a death was created by the Act. It is provided that every suit shall be for the benefit of certain specified near relations of the deceased" and shall be brought by and in the name of the executor, administrator or representative of the person deceased.

3. The learned Advocate-General for the defendants contends that in the case of '' Europeans and Eurasians" the only " representative" of a deceased man is his executor or administrator, and that in this Act the word " representative" has no application to Europeans and Eurasians but is used only with reference to Hindus and Mahomedans. Mr. <NAME> for the plaintiffs contends that the word " representative" in the Act is equivalent to, and includes, all the " heirs" of the deceased. We do not think that either of these views is correct. That the word is not equivalent to " heirs" seems clear from the fact that in Act XII of 1855 which was passed on the same day as Act XIII and which deals with a cognate subject, the right is given to bring a Suit against " heirs or representatives" of the deceased wrong-doer. Nor do we think that there is any reason for limiting the meaning of " representative " in the narrow way suggested by the Advocate-General. We think that the word means and includes all or any one of the persons for whose benefit a suit under the Act can be maintained. These persons are the representatives of the deceased in the sense that they are the persons taking the place of the deceased in obtaining reparation for the wrong done.

4. In cases where the deceased is represented by an executor or an administrator such an executor or administrator is given the power to sue for the compensation for the benefit of the specified relations. Where there is no executor or administrator or where there is one and he fails or is unwilling to sue, then in our opinion the suit may be instituted by and in the name of the " representative of the person deceased." But one suit only is allowed to enforce the claims of all the persons beneficially entitled, it being provided that the rights of each and every one of them shall be adjudged and adjusted by the <ORG> in such suit. The right of each beneficiary is only to receive compensation in proportion to the loss occasioned to him by the death of his deceased relative.

5. From this it follows and it was in effect so decided in Pym v. <ORG> with reference to the provisions of Lord <NAME>'s Act, that the right of the beneficiaries to compensation is a right distinct in each. In short, the beneficiaries entitled to compensation under Act XIII of 1855 are not persons entitled to claim compensation jointly but are parties entitled to relief severally in respect of the same cause of action which is enforceable at the suit of all or any one of them suing for himself and the rest. If this is the correct view of the statutory right given to persons in the position of the plaintiffs in these cases, it is clear that Section 7 of the Limitation Act has no application to suits such as the present, since in each case there is a widow of the accused who was under no disability and who could have sued, and therefore all the persons entitled to the compensation and capable of instituting the suit were not minors or otherwise inoapable of suing within the period of one year prescribed by Article 21. With reference to the view that in cases like the present the suit might have been brought by any one for the benefit of all, the case is analogous to that of a joint decree-holder who can, with the permission of the <ORG> under Section 231 , C.P.C. take out execution of the decree for the benefit of himself and the other decree-holders, but who was held not to be a person entitled to apply in his own right within the meaning of Section 7 of the Limitation Act. See the Pull Bench decision in <CITATION> . 25 M. 431 where it was held that the time with reference to an application for the execution of a decree passed in favour of several persons jointly ran against all the decree-holders notwithstanding the minority of some of the decree-holders, and notwithstanding that any one of them might, with the permission of the <ORG>, have executed the whole decree on behalf of all.

6. Passing now to Section 8 of the Limitation Act, that also must be held to be inapplicable. Of course persons having claims such as those sought to be enforced here are not joint creditors, and unless they can be held to be joint claimants of the kind mentioned in the section, the benefit thereof cannot be claimed by them. From the language of the whole section it is obvious that the term " joint claimants" is used with reference to persons whose substantive right is joint, or to put it otherwise with reference to more than one individual possessing the same identical substantive right. The latter part of the section relating to the discharge by one of the joint-creditors or claimants, without the concurrence of the <NAME> others, conclusively points to the correctness of this view.

7. The expression therefore does not comprehend persons whose rights are distinct and different, but who are permitted to enforce such separate rights by one judicial process to which all are parties or by a process instituted by one on behalf of all. <CITATION> . 25 M. 26 is distinguishable on the ground that the right to sue for an account and share of profits of the partnership sought to be enforced by the heirs of the deceased partner was joint and indivisible notwithstanding the several character of their interests inter se in the profits if any.

8. Now with reference to suits brought for compensation under the Act as it is stood before it was amended by Act IX of 1871, the question of the disability of any or all of the persons entitled to compensation was immaterial, and the suit had to be brought within a year from the date of death. Whether when the words " and that every such action shall be brought within 12 calendar months after the death of such deceased persons" in Section 2 of Act XIII of 1855 were repealed and Article 21 of the second schedule to Indian Limitation Act was introduced, there was an intention to make a real change in the law it is not easy to say. Having regard to the object and purpose of Act XIII of 1855, and the inexpediency of postponing the trial of questions of fact involved in a claim to be made under the provisions of the Act, it is not probable that the running of time was meant to be suspended on account of any disability on the part of some of the persons beneficially entitled. It is not improbable that the repeal of the provision as to limitation contained in Act XIII of 1855 as it stood before the amendment and the enactment of Article 21 in lieu of it, were merely for the sake of symmetry, as urged by the learned Advocate-General, still the mere absence of evidence that the legislature intended to effect a real change in the law would not justify the <ORG> in holding that the present suits are barred by limitation if the language of Section 7 or 8 was grammati cally capable of application to them. That, however, as already pointed out, is not the case.

9. The conclusion of the learned Judge is therefore right and the appeals fail and are dismissed with costs (two counsel).