JUDGMENT <NAME>, J.

1. Common point is involved and therefore, these two Writ Petitions are disposed of by a common order.

2. <ORG>, Hyderabad, who is the petitioner in these two cases, claims concessional rates of excise duty for the years 1976 and 1977 by seeking to issue a certiorarised mandamus for quashing the order of <ORG> confirming the orders of the Assistant Collector of <ORG> and the Appellate Collector of <ORG> and a consequential direction for the refund of excess duty collected.

3. The format of the case in brief is - the petitioner, a public limited company, carries on the business of manufacturing paper at Sirpur-Kaghaznagar. The petitioner enlarged their production capacity by installing new paper machines in their manufactory, which came into production from about the month of April 1967. <ORG> of India, first respondent herein, by their notification No. 163/65 dated 1-10-1965 extended concessional rates in respect of paper which was attributable to the enlarged production capacity of the producers and cleared after 1-3-1964. Under the said notification, as averred by the petitioner, issued under sub-rule (1) of Rule 8 of the <ORG> Rules, 1944 (hereinafter referred to as 'the rules') the concession was to operate with reference to the period during which the paper was manufactured. However, the said notification was rescinded by Notification No. 87/73 dated 1-3-1973. The petitioner had claimed the benefit of the concessional rates of Excise duty in respect of the paper produced during the period related to the enlarged production capacity but removed from the factory after 1-3-1973, the date on which the earlier notification came to be rescinded. The Assistant Collector, <ORG>, 3rd respondent herein, based on the provisions of Rule 9A of the Rules, rejected the claim on the ground that the concession will not be available in respect of any stocks that are held by the manufacturers after the notification dated 1-3-1973 and that the petitioner was liable to pay the full rate of duty. Aggrieved against, the petitioner preferred unsuccessfully an appeal before the Appellate Collector, <ORG>, 2nd respondent herein and a revision before <ORG>, first respondent herein, resulting in the confirmation of the orders of the 3rd respondent on the ground that under Rule 9A the rate of duty applicable is the one prevailing at the time of its removal from the place of manufacture and the tariff rate read with any exemption notification comes into play only at that time, since at the time of clearance the exemption notification stood rescinded, the right or benefit contemplated under the said notification became extinguished. Hence these Writ Petitions.

4. The argument in the main of the learned counsel for the petitioner <NAME>, is that Excise duty is essentially a tax on the manufacture or production of goods and when exemption is granted on the criterion of production due to expanded capacity, the very act of production attracts the applicability of the exemption notification and therefore, the stage of removal of the goods from the factory has no relevance.

5. The counter contention of Sri <NAME>, learned Standing Counsel for <ORG>, is that Rule 8 on which the petitioner relies upon, does not indicate the impost of duty as it is only on incidence; whereas Rule 9A which is the relevant provision, postulates the exigibility of tax at a time when the goods manufactured are removed. Before analysing the rival contentions, the relevant statutory provisions be noticed.

6. Section 3(1) of the Central Excises and Salt Act , 1944, reads as under :

"Levy and Collection of duty

3. Duties specified in the First Schedule to be levied. - (1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India, and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule.

(A) The provisions of sub-section (1) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, <ORG>, as they apply in respect of goods which are not produced or manufactured by <ORG>."

7. Section 4 of the Act reads :

"4. Determination of value for the purpose of duty. - Where under this Act, any article is chargeable with duty at a rate dependent on the value of the article, such value be deemed to be -

(a) the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production, or if a wholesale market does not exist for such article at such place, at the nearest place where such market exists, or

(b) where such price is not ascertainable, the price at which an article of the like kind and quality is sold or is capable of being sold by the manufacturer or producer, or his agent, at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production or if such article is not sold or is not capable of being sold at such place, at any other place nearest thereto.

Explanation. - In determining the price of any article under this section no abatement or deduction shall be allowed in respect of trade discount and the amount of duty payable at the time of the removal of the article chargeable with duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid."

8. Rule 8 of the Central Excise Rules, 1944, reads as under :

"8. Power to authorise exemption from duty in special cases. - (1) The Central Government may from time to time by notification in the Official Gazette, exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods, (2) <ORG>, may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature any excisable goods."

9. Rule 9 runs as under :

"9. Time and manner of payment of duty. - (1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export, or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form :

Provided that such goods may be deposited without payment of duty in a store room or other place of storage approved by the Collector under rule 27 or rule 47 or in a warehouse appointed or licensed under rule 140 or may be exported under bond as provided in rule 13 :

Provided further that such goods may be removed on part-payment of duty leviable thereon if the Central Government, by notification in the official gazette, allow the goods to be so removed under rule 49."

10. Rule 9A reads as under :

"9A Date for determination of duty and tariff valuation. - (1) The rate of duty and tariff valuation, if any, applicable to any excisable goods, shall be the rate and valuation in force.

(i) in the case of goods cleared from the premises of a curer on payment of duty, on the date on which the duty is assessed, and,

(ii) in the case of goods cleared from a factory or a warehouse, subject to sub-rule (2), (3) and (3A), on the date of the actual removal of such goods from such factory or warehouse.

(2) If the goods have previously been removed from warehouse under bond to be rewarehoused, and the duty is paid on such goods without their being rewarehoused, the rate and valuation, if any, applicable thereto shall be the rate and valuation, if any, in force on the date on which duty is paid or if duty is paid through an account-current maintained with Collector under rule 9, on the date on which an application in the proper form is delivered to the officer-in-charge of the warehouse from which the goods were removed.

(3) Where any person who has removed excisable goods for export in bond fails to export or to furnish proof of such export to the satisfaction of the Collector or diverts the goods for home consumption, the rate of duty leviable and the tariff valuation, if any, in respect of such goods shall be the rate and valuation in force on the date on which the duty is paid."

The case law cited be also noticed :

Case law for the petitioner :

11. <CITATION> - 1978 E.L.T. (J 33). - In this case Writ of Certiorari was sought to quash the demand dated 20-3-1972 directing the petitioner to pay the excise duty on the pre-budget stocks declared on 16-3-1972 of power driven pumps and a mandamus restraining the respondents from recovering the excise duty from the petitioner as a condition precedent to the removal of the power driven pumps, admittedly manufactured from 1-3-1968 to 16-3-1972 during which period no excise duty was leviable. In those circumstances, a Division Bench of <ORG> held :

"It is always open to the legislature to make a tax operative retrospectively. But even such retrospective operation will not change the nature of tax and it will be payable according to the provisions enacted in the charging section of the relevant statutes. Therefore, interpreting Section of the Central Excises and Salt Act , 1944, we are of the opinion that the liability for tax, namely, the excise duty would arise no sooner the manufacture or the production is completed and it is immaterial as to what machinery may be devised by <ORG> under the rule making powers for recovery of a tax. The point of recovery or any restriction on removal will not be the determining factor for grant of exemption in respect of goods manufactured during the duty free period."

12. <CITATION> . - 1978 E.L.T. (J 117) a Division Bench of <ORG> held :

"Excise duty is leviable on the goods, produced by manufacturer. It is not a duty on the sale or removal of goods, therefore, goods produced during the exemption period are entitled to the benefits of the exemption notification even though they are removed from the place of manufacture when the exemption notification is not in force."

13. <CITATION> - 1978 E.L.T. (J 690) while refusing leave to appeal to <ORG> against the judgment in <CITATION> (cited supra), <ORG> of <ORG> held :

"Excise duty being a tax on manufacture or production, the material time for liability of excise duty under Section 3 will be the date of manufacture or production. Therefore, if the notification withdrawing the exemption came into effect from 16-3-1972 and had no retrospective operation, the excisable articles which were in stock till 16-3-72 were exempt from excise duty and excise duty would be payable on excisable articles produced or manufactured on 17-3-1972 and onwards only."

Case law for the respondent :

14. <CITATION> . - 1978 E.L.T. (J 680) a Division Bench of <ORG> while construing the provisions of Section 3 , Rules 7, 8, 9 and 9A, held :

"One does not find any warrant in the Central Excise Act or the rules to spell out a construction that it is only the stage of manufacture or production of goods which attracts duty. Therefore, if at the date when the goods are removed from the place of manufacture, they are specified in Schedule I, they cannot be removed unless duty is paid on them, even though such goods have been manufactured when there was no excise duty on them."

15. <CITATION> - 1979 E.L.T. (J 258) a Division Bench of <ORG>, while considering the effect of withdrawal of exemption notification under Rule 9A, held :

"When a concession flows from the rules, the effect of the withdrawal of that concession would save to be judged by the relevant rules themselves which provide a crucial date and for this purpose under rule 9A the rate of duty shall be the duty in force at the time of removal of these goods. Therefore, the goods manufactured prior to the withdrawal of exemption notification but removed thereafter, would not be entitled to such exemption."

Further held :

"It is clear that the goods in question became excisable when the relevant Tariff Item IB was added to the Ist Schedule to the Central Excise Act . But, the duty imposed was foregone on these excisable goods to the full extent by the exemption notification issued under rule 8 of the Central Excise Rules. Therefore, once that exemption notification is superseded, it is obvious that excisable goods in question attracted duty to the fullest extent because it was merely substitution of the rate of full duty for the 'nil' duty. The analogy of pre-budget stock is not applicable in such cases."

Also held :

"It is true that levy and exemption are parts of the same scheme of taxation because the two together carry into effect the purpose of the legislation. In order to find out the true scheme of a taxing measure, it is not merely levy that has to be taken into consideration, but also exemption granted. Hence, the charging section has to be interpreted along with the relevant exemption as one whole integrated scheme."

16. <CITATION> - 1980 E.L.T. 285 <ORG> held :

"It is true that excise duty is on the manufacture or production of goods but the above rules leave no room for doubt that it is leviable at a time of removal of goods from the place of manufacture and not with reference to the manufacture of excisable goods. Thus, the taxable event is the date of removal and not the date of manufacture of goods. Therefore, stock of molasses available with the petitioner before 18-6-1980 when Item 15CC was introduced in the Central Excise Tariff by Finance Act , 1980, would be liable to duty under Item 15CC."

Further held :

"It is true that excise duty by its very nature is on the production or manufacture of goods. But, it can be levied at any convenient stage so long as the character of impost is not lost. However, the method of collection does not affect the essence of the duty but only relates to the machinery of collection for administrative convenience."

17. A Division Bench of <ORG> in M.P. No. 338/79, dated 16-1-1982, while differing from the earlier decisions of that <ORG>, held, based on the provisions enacted in Rule 9A, 'that the excise authorities were right in applying the rates prevailing on the date of removal.'

18. Section 3 of the Act, which seeks to levy and collect duty reads in effect and substance, omitting unnecessary clauses, as under :

"There shall be levied and collected..... duties of excise on all excisable goods...... which are produced or manufactured in India.... and at the rates set forth in the 1st Schedule."

In sum, levy of excise duty is on goods which are produced or manufactured. So, the impost is on the production or manufacture of the excisable goods. In fact, this has been so held by <ORG>. (vide <CITATION> . and <ORG> v. Asst. Collector Central Excise . In other words, imposition of the duty is on the goods produced or manufactured. Section 4 provides for the determination of the value of the goods for the purpose of duty; Rule 8 enables the <ORG> to exempt certain goods in special circumstances, partially or wholly, from the imposition of excise duty; Rule 9 lays down the time and mode of payment of duty and Rule 9A schedules the date for determination of duty and tariff valuation. So, in effect the aforesaid four provisions indicate as to how, when, where and at what point of time the excise duty is to be determined and paid. It is fairly settled that the impost is primarily the concern of the legislature; and the manner, the mode, the determination and collection is the responsibility of the quasi-judicial body and the executive body. The answer, therefore, to the proposition, which falls for determination in these cases, is found in Section 3 and not in any other section or rule, including Rule 9A.

19. On a conspectus of the cases cited by the respondents, what we find is that much emphasis is laid on Rule 9A. True, what Rule 9A stipulates is that the rate of duty shall be the one which is in vogue on the date when the duty is assessed. But, nevertheless it should not make any difference, as there cannot be any quarrel, that the provisions postulated by the said rule lays down more the mode and manner of assessment. It does not answer the question posed herein. The question is, what is that attracts the tax and not when, how and to what extent it attracts. In out undoubted view, as we observed earlier, the attraction of tax is at the very threshold when excisable commodity is manufactured or produced, notwithstanding the point of its removal, consumption or being caused the disappearance of. We are, therefore, unable to be in line with the view adopted by <ORG> at Bombay, Gujarat and Allahabad in the cases cited supra.

20. <ORG> appears to have made a departure from its earlier two decisions in M.P. No. 338/79 when it held 'that the excise authorities were right in applying the rates prevailing on the date of removal', and thereby agreed with the conclusions reached by the Bombay and Gujarat <ORG>, which have been referred to herein-above. Their Lordships of <ORG> in the abovesaid case having referred to the observations of <ORG> in <CITATION> to the effect that "a duty of excise is clearly related to production or manufacture of goods but it does not matter if the levy is made not at the moment of production or manufacture but at a later stage and that if the duty is collected from a retailer it would not necessarily cease to be an excise duty", were nevertheless led away by the provisions enacted in Rule 9A as well as the observations of <NAME>, C.J. in <CITATION> - AIR 1942 F.C. 33 wherein it is observed : "that the taxing authority does not ordinarily levy excise duty at the stage of manufacture or production for it is more convenient administratively to levy the duty when the goods leave the factory for the first time."

21. We apprehend, with great respect, the learned Judges misconceived the effect and impact of the observations of <ORG> as well as the provisions enacted in Rule 9A. Merely because the mode and method adopted is to collect duty at a later stage, viz., at the time of clearance or removal of goods because of administrative convenience, the point of impost which is sine qua non in adjudicating as to when the commodity attracts duty, cannot be postponed.

22. A good look at the provisions in Rule 9A makes it pretty clear that four varied points of clearance are postulated for the determination of duty and tariff valuation, which should not be mixed up with or mistaken for the imposition of duty, which is the chief criterion for answering the question in this case.

23. We may also usefully refer to the approach made by <ORG> in Revision No. 23 of 1981 dated 7-1-1981 in In re <ORG>, Bunder Road - 1982 E.L.T. 655 wherein the facts are rather akin to the case on hand. In that case after referring to the decision of <ORG> in <CITATION> - 1978 E.L.T. (J 33) <ORG> accepted the petitioners contention holding that the petitioner should not have been denied the benefit of the exemption notification though the same stood rescinded at a time when the goods were cleared. True, there was an additional factor in that case, viz., that the petitioner had claimed the benefit of the notification in respect of those goods on 15-1-1974 i.e., before the exemption was withdrawn, but their request was disallowed stating that they would have to file a fresh classification list as applied to past clearances and not to the clearances effected after the issue of the order in appeal. Nevertheless the fact remains essentially <ORG> appears to have been attracted by the ratio laid down by <ORG> in <CITATION> .

24. The contention of the learned Standing Counsel for <ORG> that the decision in <NAME>'s case should not be a guideline in adjudicating the case on hand for the reason that that case was concerned with the goods wholly exempted, has no substance inasmuch as on principle it makes no difference whether the matter pertain to partial or total exemption. Likewise, the contention in regard to the dismissal of the <ORG> on merits by <ORG> passed on September 1, 1977 against the aforesaid judgment of <ORG> in <NAME>'s case, it should not be taken to be really a decision on merits, also merits no consideration, as it is fairly settled by now that when the court records its order as dismissal on merits, it must be taken to have been a decision on merits.

25. Yet another aspect. When a notification is issued extending exemption, partial or total, with reference to, say, expansive production as in this case, and the assessee on that court produces or manufactures goods in compliance of the said notification and if the authority rescinds the same after the goods are manufactured and before the goods are cleared or removed for one reason or the other, then the very scheme and object behind such exemption clause is rendered abortive, stultifying the very incentive accorded to the manufacturer or producer. Surely this could not be the intention of the authority concerned. We find it hard to accede to the contentions advanced by the learned Standing Counsel for <ORG>.

26. From the foregoing, therefore, it is manifest and we unhesitatingly hold that the excise duty would arise the moment the manufacture or production of the commodity is complete irrespective of the fact that the assessment and collection is postponed to a later point of time when the said commodity is cleared or removed; the incidence for the impost being the manufacture or production of goods. If that be so, the petitioners are entitled to have the benefit of the exemption notification and so, the refund of the excess duty paid.

27. In the result, the impugned orders are quashed and the respondents are directed to refund the excess duty collected. The two Writ Petitions are allowed accordingly. No costs.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF BIHAR AND ANOTHER DATE OF JUDGMENT01/08/1983 BENCH: <NAME>, <NAME>: <NAME>, Y.V. ((CJ) SEN, <NAME> (J) MISRA RANGNATH CITATION: 1983 AIR 1086 1983 SCR (3) 508 1983 SCC (4) 141 1983 SCALE (2)103 CITATOR INFO : F 1986 SC 494 (3) RF 1987 SC1086 (7) ACT: Constitution of India- Art. 32- Scope of-Whether in a habeas corpus petition under Art. 32 Supreme Court can grant compensation for deprivation of a fundamental right. Constitution of India- Art. 21- Scope of-whether covers right to compensation for its violation. HEADNOTE: The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under Art. 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful. He also asked for certain other reliefs including compensation for his illegal detention. When the petition came up for hearing the Court was informed by the respondent <ORG> that the petitioner had already been released from the jail. Allowing the petition, ^ HELD: The petitioner's detention in the prison after his acquittal was wholly unjustified. Article 32 confers power on <ORG> to issue directions or orders or appropriate writs for the enforcement of any of the rights conferred by Part III of the Constitution. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its a violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the <ORG> as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the <ORG> must repair the damage done by its officers to their rights. [513 A-C, 514 B-E] In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the <ORG> Government has so grossly 509 violated. Therefore, as an interim measure the <ORG> must pay to the petitioner a further sum of Rs. 30,000 in addition to the sum of Rs 5,000 already paid by it. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the <ORG> and its erring officials. [514 B,F,H] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 1987 of 1982.

(Under Article 32 of the Constitution of India) Mrs. <NAME> for the Petitioner.

<NAME> for the Respondent.

The Judgment of the Court was delivered by CHANDRACHUD, C.J.: This Writ Petition discloses a sordid and disturbing state of affairs. Though the petitioner was acquitted by <ORG>, Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October 16, 1982, that is to say, more than 14 years after he was acquitted. By this Habeas Corpus petition, the petitioner asks for his release on the ground that his detention in the jail is unlawful. He has also asked for certain ancillary reliefs like rehabilitation, reimbursements of expenses which he may incur for medical treatment and compensation for the illegal incarceration.

This petition came up before us on November 22, 1982 when we were informed by <NAME>, counsel for the State of Bihar, that the petitioner was already released from the jail. The relief sought by the petitioner for his release thus became infructuous but despite that, we directed that a Notice to show cause be issued to the State of Bihar regarding prayers 2, 3 and 4 of the petition. By prayer No. 2 the petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks for an ex gratia payment for his rehabilitation, while by prayer No 4 he asks for compensation for his illegal detention in the jail for over 14 years.

We expected a prompt response to the Show Cause Notice from the Bihar Government at least at this late stage, but they H offered no explanation for over four months. The Writ Petition was listed before us on March 31, 1983 when <NAME> restated that the petitioner had been already released from the jail.

We passed a specific order on that date to the effect that the release of the petitioner cannot be the end of the matter and we called upon <ORG> to submit a written explanation supported by an affidavit as to why the petitioner was kept in the jail for over 14 years after his acquittal. On April 16, 1983, <NAME>, Jailor, Muzaffarpur Central Jail, filed an affidavit in pursuance of that order. Shorn of its formal recitals, the affidavit reads thus:

"2. That the petitioner was received on 25.3.67 from Hazaribagh Central Jail and was being produced regularly before the Additional Sessions Judge, Muzaffarpur and on 30.8.68 the learned Judge passed the following order:

"The accused is acquitted but he should be detained in prison till further order of the State Government and <ORG>), Bihar."

(A true copy of the same is attached as Annexure I).

3. That accused <NAME> was of unsound mind at the time of passing the above order. This information was sent to <ORG> in letter No. 1838 dated 10.5.74 of the Superintendent, <ORG>, <NAME> through District Magistrate, <NAME>.

4. That the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused <NAME> was normal and this information was communicated to <ORG> on 21.2.77.

5. That the petitioner, <NAME> was treated well in accordance with the rules in the Jail Manual, Bihar, during the period of his detention.

6. That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10 82 of <ORG>."

The Writ Petition came up before us on April 26, 1983 when we adjourned it to the first week of August 1983 since it was not clear either from the affidavit filed by the Jailor or from the order of the learned Additional Sessions Judge, <NAME>, which is annexed to the affidavit as Annexure I, as to what was the basis on which it was stated in the affidavit that the petitioner was of unsound mind or the reason why the learned Additional Sessions Judge directed the detention of the petitioner in jail, until further orders of the State Government and the Inspector General of Prisons.

The writ petition has come up for hearing once again before us today. If past experience is any guide, no useful purpose is likely to be served by adjourning the petition in the hope that the State authorities will place before us satisfactory material to explain the continued detention of the petitioner in jail after his aquittal. We apprehend that the present state of affairs, in which we are left to guess whether the petitioner was not released from the prison for the benign reason that he was insane, is not likely to improve in the near future.

The Jailor s affidavit leaves much to be desired. It narrates with an air of candidness what is notorious, for example, that the petitioner was not released from the jail upon his acquittal and that he was reported to be insane. But it discloses no data on the basis of which he was adjudged insane, the specific measures taken to cure him of that affliction and, what is most important, whether it took 14 years to set right his mental imbalance. No medical opinion is produced in support of the diagnosis that he was insane nor indeed is any jail record produced to show what kind of medical treatment was prescribed for and administered to him and for how long. The letter (No. 1838) dated May 10, 1974 which, according to paragraph 3 of the affidavit, was sent to <ORG> by the Superintendent of <ORG>, <NAME>, is not produced before us. There is nothing to show that the petitioner was found insane on the very date of his acquittal. And, if he was insane on the date of acquittal, he could not have been tried at all for the simple reason that an insane person cannot enter upon his defence Under the Code of Criminal Procedure, insane persons have certain statutory rights in regard to the procedure governing their trial. According to paragraph 4 of the affidavit, the Civil Surgeon, <NAME>, reported on February 18, 1977 that the petitioner was normal and that this information was communicated to <ORG> on February 21, 1977. Why was the petitioner not released for over 5&1/2 years thereafter ? It was on october 14, 1982 that <ORG> of <ORG> directed that the petitioner should be released. Why was <ORG> so insensitive to justice ? We are inclined to believe that the story of the petitioner's insanity is an afterthought and is exaggerated out of proportion. If indeed he was insane, at least a skeletal medical record could have been produced to show that he was being treated for insanity. In these circumstances, we are driven to the conclusion that, if at all the petitioner was found insane at any point of time, the insanity must have supervened as a consequence of his unlawful detention in jail. A sense of helplessness and frustration can create despondency and persistent despondency can lead to a kind of mental imbalance.

The concerned <ORG> <ORG> could have afforded to show a little more courtesy to this Court and to display a greater awareness of its responsibilities by asking one of its senior officers to file an affidavit in order to explain the callousness which pervades this case. Instead, the Jailor has been made a scapegoat to own up vicariously the dereliction of duty on the part of the higher officers who ought to have known better. This is not an isolated case of its kind and we feel concerned that there is darkness all around in the prison administration of the State of Bihar. The Bhagalpur blindings should have opened the eyes of <ORG>. But that bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables. Perhaps, a Hercules heas to be found who will clean them by diverting two rivers through them, not the holy Ganga though. We hope (and pray) that the higher officials of the State will find time to devote their personal attention to the breakdown of <ORG> in the State and rectify the grave injustice which is being perpetrated on helpless persons. <ORG> should itself examine this matter and call for statistical data from the Home <ORG> <ORG> on the question of unlawful detentions in the State Jails A tabular statement from each jail should be called for, disclosing how many convicts have been in jail for more than 10 years, 12 years, 14 years and for over 16 years. <ORG> will then be in a position to release prisoners who are in unlawful detention in the jails and to ask <ORG> to take steps for their rehabilitation by payment of adequate compensation wherever necessary.

That takes us to the question as to how the grave injustice which has been perpetrated upon the petitioner can be rectified, in so far as it lies within our power to do in the exercise of our writ jurisdiction under Article 32 of the Constitution. That article confers power on <ORG> to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. The right to move <ORG> by appropriate proceedings for the enforcement of the rights conferred by Part III is "guaranteed", that is to say, the right to move <ORG> under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under article 32 , this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison- after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass appropriate order for the payment of compensation in this Habeas Corpus petition itself.

We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from <ORG>. Happily, the <ORG>'s Counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which <ORG> has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the <ORG> as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the <ORG> must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.

Taking into consideration the great harm done to the petitioner by <ORG>, we are of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs. 30,000 (Rupees thirty- thousand) in addition to the sum of Rs. 5,000 (Rupees five thousand) already paid by it. The amount shall be paid within two weeks from today. <ORG> agrees to make the payment though, we must clarify, our order is not based on their consent.

This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the state and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor <NAME>. The <ORG> will have liberty to raise those points in that suit. Until then, we hope, there will be no more <NAME>s in Bihar or elsewhere.

H.L.C. Petition allowed.


PETITIONER: PANDIT M. S. M. SHARMA Vs. RESPONDENT: DR. SHREE KRISHNA <NAME> AND OTHERS. DATE OF JUDGMENT: 01/08/1960 BENCH: <NAME>, BHUVNESHWAR P.(CJ) BENCH: <NAME>, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1960 AIR 1186 CITATOR INFO : R 1961 SC1457 (12) R 1964 SC1013 (16) R 1965 SC1553 (5,52) RF 1975 SC2299 (510) ACT: State <ORG>--Breach of Privilege--Decision of <ORG>, if res-judicata between Parties--Constitution of India, Arts. 194(3) 19(1)(a). HEADNOTE: The petitioner, the Editor of <ORG>, an English daily newspaper published from Patna, was called upon to show cause before <ORG> of the Bihar <ORG> why he should not be proceeded against for the breach of privilege of the Speaker and the <ORG> for publishing an inaccurate account of the proceedings of the <ORG>. He moved this <ORG> under Art. 32 of the Constitution for quashing the said proceeding and the question for decision in substance was whether the said privilege conferred by Art. 194(3) of the Constitution was subject to the fundamental 97 rights of a citizen under Art. 19(1)(a) of the Constitution. This <ORG> by a majority found against the petitioner. Thereafter the <ORG> was prorogued several times, <ORG> reconstituted and a fresh notice was issued to the petitioner. By the present petition the petitioner in substance sought to reopen the decision, raise the same controversy once again and contend that the majority decision was wrong. The question was whether he could be allowed to do so. Held, that the general principles of res judicata applied and the judgment of this <ORG> could not be allowed to be reopened and must bind the petitioner and the <ORG> of Bihar and the reconstitution of <ORG> in the meantime could make no difference. <CITATION> ,  S.C.R. 154, applied. Since this <ORG> had held that the <ORG> bad the power to control the publication of its proceedings and punish any breach of its privilege, there could be no doubt that it had complete jurisdiction to carry on its proceedings in accordance with its rules of business and a mere non- compliance with rules of procedure could be no ground for interference by this <ORG> under Art. 32 of the Constitution. <CITATION> ,  S.C.R. 344, referred to. Prorogation of the <ORG> does not mean its dissolution and the only effect it has is to interrupt its proceedings which can be revived on a fresh motion to carry on or renew them. It was, therefore, not correct to contend that since the <ORG> was prorogued several times since after the alleged breach of privilege, the proceeding must be deemed to be dead. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 176 of 1959. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights.

<NAME>, <NAME>, <NAME> and <NAME>, for the petitioner.

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

<NAME>, Attorney-General for India, <NAME>, Solicitor-General of India, <NAME> and <NAME>, for the Attorney-General of India. 1960. August 1. The Judgment of the <ORG> was delivered by <NAME> this petition under Art. 32 of the Constitution the petitioner raises almost the same  controversy as had been done in Writ Petition No. 122 of 1958, which was heard and determined by this <ORG> by its judgment dated December 12, 1958, and by Writ Petition No. 106 of 1959, which was heard by this <ORG> on November 10, 11 and 12, 1959, but which did not reach the stage of judgment by this <ORG>, inasmuch as the petitioner's Advocate requested the <ORG> to permit him to withdraw the petition and the <ORG> allowed the prayer and permitted the petitioner to withdraw the petition. In each of these petitions the petitioner, who is a journalist by profession and is functioning as the Editor of " the <ORG> ", an English daily newspaper published from Patna in the State of Bihar, impugned the validity of the proceedings before <ORG> and prayed for restraining the opposite party, namely, the Chief Minister of Bihar as Chairman of <ORG>, <ORG>, <ORG> and the Secretary of the <ORG>, from proceeding against the petitioner for the publication in its issue dated May 31, 1957, of the <ORG> an account of the debate in <ORG>, Bihar, on May 30, 1957. The facts of the case have been stated in great detail in the majority judgment of this <ORG> delivered by <NAME>, C. J., in <CITATION> (1). In the opening paragraph of this <ORG>'s judgment aforesaid, the parties before the <ORG> have been enumerated and the anomaly pointed out. This <ORG> held in effect that under Art. 194(3) of the Constitution <ORG> has the same powers, privileges and immunities as <ORG> of the Parliament of the United Kingdom had at the commencement of the Constitution. <ORG> at the relevant date had the power or privilege of prohibiting the publication of even a true and faithful report of proceedings of the <ORG> and had a fortiori the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debate or proceedings. The powers or privileges of a <ORG> of State Legislature are the same as (1)  SUPP.1 S.C.R. 806.

those of <ORG> in those matters until <ORG> or <ORG>, as the case may be, may by law define those powers or privileges. Until that event has happened the powers, privileges and immunities of <ORG> of, a <ORG> or of its members and committees are the same as those of <ORG> at the date of commencement of our Constitution. This <ORG> also expressed the view that <ORG> in this country like <ORG> will no doubt appreciate the benefit of publicity and will not exercise those powers, privileges and immunities, except in gross cases. The minority judgment delivered by <NAME>, J., on the other hand, expressed the view that at the relevant date <ORG>, even as the <ORG> in this country, had no privilege to prevent the publication of a correct and faithful report of the proceedings of those legislatures, except those of secret sessions, and bad only a limited privilege to prevent mala fide publication of garbled, unfaithful or expunged reports of the proceedings. He also held that the petitioner had the fundamental right to publish the report of the proceedings of the <ORG>. In the result, this <ORG>, in view of the judgment of the majority, dismissed the petition, but made no order as to costs. This <ORG> further held that <ORG> was entitled to take proceedings for breach of its privileges and it was for the <ORG> itself to determine whether there had in fact been any breach of any of its privileges.

After Writ Petition No. 122 of 1958 had thus ended, the petitioner again moved this <ORG> under Art. 32 of the Constitution. That case was registered as Writ Petition No. 106 of 1959. On January 5, 1959, the petitioner received a notice that the case of breach of privilege against him would be considered by <ORG> on February 3, 1959. That hearing was postponed from date to date, until in August, 1959, the petitioner filed his petition under Art. 32 of the Constitution. He contended in that petition that, as a citizen of India, the petitioner had the fundamental right under Art. 19(1)(a) of the Constitution to freedom of speech and expression which included the freedom of publication and circulation and that <ORG> could not claim any privilege contrary to the right thus claimed. In effect, it was contended that the privilege conferred on <ORG> by Art. 194(3) of the Constitution was subject to the fundamental right of a citizen contained in Art. 19(1)(a). It was also contended that the first respondent, the Chief Minister of Bihar, who, it was alleged, had control over the majority of the members of <ORG> and of <ORG>, was proceeding mala fide in getting the proceedings instituted against the petitioner for alleged breach of the privilege of the <ORG>. Though not in terms, but in effect, the points raised in this petition were a reiteration of those already determined by this <ORG> in its judgment aforesaid of December 12, 1958. The prayer made in the petition was that the proceedings of <ORG> at its meeting held on August 10, 1958, might be quashed and the respondents restrained by a writ in the nature of a writ of prohibition from proceeding against the petitioner in respect of publication aforesaid of the proceedings of <ORG> of May 30, 1957. After the petitioner had made his writ application to this <ORG> as aforesaid, <ORG> reconstituted <ORG>, and on that very date a member of <ORG> sought to move a motion in that <ORG> for revival and re- reference of the matter of the alleged breach of privilege by the petitioner. Some members of <ORG> objected to the motion being moved and the Speaker of the <ORG> deferred giving his ruling on that objection. At the instance of some of the members of the <ORG>, the Speaker of the <ORG> referred two questions to the Advocate General of Bihar for his opinion on the floor of the <ORG> on October 20, 1959, namely, (1) whether it was open to the <ORG> to debate on an issue which might be sub judice in view of the writ petition aforesaid filed by the petitioner in the Supreme <ORG> under Art. 32; and (2) whether the matter which was dead by reason of prorogation of the <ORG> several times could be, legally revived and restored. On October 20, 1959, the Advocate General of Bihar attended the <ORG> and gave his opinion, which it is not relevant to' state here. The Writ Petition, 106 of 1959, was heard in part and allowed to be withdrawn, as indicated above, on November 12, 1959.

On November 24, 1959, the petitioner received a fresh notice from the Secretary of <ORG>, opposite party No. 3, calling upon the petitioner to show cause on or before December 1, 1959, why appropriate action should not be recommended against him for a breach of the privilege of the Speaker and the <ORG>. The petitioner again instituted proceedings under Art. 32 of the Constitution complaining that the motion adopted by <ORG> of the Bihar Legislative <ORG> at its meeting held on November 23, 1959, amounted to an abridgement of his fundamental right of speech and expression guaranteed under Art. 19(1) (a) of the Constitution and was an " illegal and mala fide threat to the petitioner's personal liberty in violation of Art. 21 of the Constitution of India and that <ORG>, respondent No. 2 had no jurisdiction or authority to proceed against the petitioner as threatened by the notice aforesaid ".

The grounds of attack raise substantially the same questions that were agitated on the previous occasions in this Court. It was contended before us that the petitioner, as a citizen of India, had the fundamental right of freedom of speech and expression which included the freedom of obtaining the earliest and most correct intelligence of the events of the time including the proceedings of a <ORG> and publishing the same and that no <ORG> of a State could claim a privilege so as to curtail that right. It was, therefore, contended that the majority decision of this Court in <CITATION> (1) was wrong.. In this connection it was also contended that (1)  SUPP. 1 S.C.R. 806.

the rule of construction adopted by this Court in its pre- vious decision had been wrongly applied. It was further contended that even if <ORG> of a State Legislature had the same powers, privileges and immunities as those of <ORG> of Commons, those will be only such as were being actually exercised at the date of the commencement of the Constitution and the right to prevent publication of its proceedings was not one of those powers, privileges or immunities. An appeal was also made to Art. 21 of the Constitution and it was contended that no citizen could be deprived of his personal liberty, except in accordance with the procedure established by law. Hence, it was further contended that the malafide act of respondents 1 and 2 calling upon the petitioner to show cause was a threat to his fundamental right, and, finally, it was contended that after several prorogations, the previous proceedings for breach of privilege were dead and <ORG> of the Assembly had, therefore, no power or jurisdiction to issue the fresh notice in accordance with the motion of November 23, 1959, reviving the proceedings.

It will thus appear that in the present proceedings also the very same questions which were discussed and decided in Writ Petition No. 122 of 1958 are sought to be raised once again. In effect, it is sought to be argued that the previous decision of this Court has proceeded on a wrong appreciation of the legal position. In short, it is insisted that the petitioner has the fundamental right of publishing the proceedings of <ORG> and that the <ORG> has no power to restrict or control the publication of its proceedings.

The Government Advocate of Bihar, on behalf of the opposite party, has contended, in the first instance, that the present writ petition against the parties, namely, the Chairman and the Members of <ORG>, respondents 1 and 2, is barred by the principle of res judicata and, therefore, not maintainable. His contention also is that the writ cannot issue either against an individual member or against <ORG> as a whole in respect of what has been done by it in exercise of its privilege of prohibiting or, at any rate, controlling the publication of its proceedings.

On behalf of the petitioner it was contended by Mr. <NAME> that respondent No. 2, the, <ORG>, has been reconstituted as aforesaid after the first decision of this Court which is sought to be availed of as res judicata and that therefore the rule of res judicata is inapplicable. In this connection it may be pointed out that in Writ Petition No. 122 of 1958, <NAME>, Chief Minister of Bihar, was impleaded as opposite party No. 1 in his capacity as the Chairman of the <ORG> of <ORG> and opposite party No. 2 was cited as <ORG>, <ORG>, without any names being given. In the present writ petition, opposite party No. 1 is the same. Opposite party No. 2 is impleaded as <ORG> of <ORG> and then a number of names are given including that of Dr. <NAME>, the Chief Minister, as Chairman. Would it make any difference that though opposite party No. 2 is the <ORG>, its personnel is different from that of the <ORG> constituted as it was in 1958 ? In our opinion, it does not make any difference. So long as the <ORG> remains the same it is open to the <ORG> to reconstitute its Committees according to the exigencies of the business of the <ORG>. The <ORG> is one of the agencies through which the <ORG> has to transact its business. It is really the <ORG> as a whole which is proceeding against the petitioner in purported exercise of its powers, privileges and immunities as held by this Court in its judgment in Writ Petition No. 122 of 1958. This Court has laid it down in the case of <CITATION> (1) that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full contest, even though the first Tribunal which decided (1)  S.C.R. 154.

the matter may have no jurisdiction to try the subsequent suit and even though the subject-matter of the dispute was not exactly the same in the two proceedings. In that case the rule of res judicata was ,applied to litigation in land acquisition proceedings. In that case the general principles of law bearing on the rule of res judicata, and not the provisions of s. 1 1 of the Code of Civil Procedure, were applied to the case. The rule of res judicata is meant to give finality to a decision arrived at after due contest and after hearing the parties interested in the controversy. There cannot be the least doubt that, though eo nomine opposite party No. 2 were not the same, but there is no escape from the conclusion that <ORG> is the same <ORG> irrespective of its personnel at a given time so long as it was a <ORG> constituted by the same <ORG>. The question decided by this <ORG> on the previous occasion was substantially a question affecting the whole <ORG> of the State of Bihar and was of general importance and did not depend upon the particular constitution of <ORG>. It cannot, therefore, be said that the question decided by this <ORG> on the previous occasion had not been fully debated and had not been decided after due deliberation. That there was difference of opinion and one of the Judges constituting the <ORG> held another view only shows that there was room for difference of opinion. It was a judgment of this <ORG> which binds the petitioner as also the <ORG> of Bihar. For the application of the general principles of res judicata, it is not necessary to go into the question whether the previous decision was right or wrong. In our opinion, therefore, the questions determined by the previous decision of this <ORG> cannot be reopened in the present case and must govern the rights and obligations of the parties which, as indicated above, are substantially the same. It is manifest, therefore, that the petitioner has no fundamental right which is being threatened to be infringed by the proceedings taken by the opposite party. It now remains to consider the other subsidiary questions raised on behalf of the petitioner. It was contended that the procedure adopted inside <ORG> was not regular and not strictly in accordance with law. There are two answers to this contention, firstly, that according to the previous decision of this <ORG>, the petitioner has not the fundamental right claimed by him. He is, therefore, out of <ORG>. Secondly, the validity of the proceedings inside <ORG> State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. Article 212 of the Constitution is a complete answer to this part of the contention raised on behalf of the petitioner. No <ORG> can go into those questions which are within the special jurisdiction of the <ORG> itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention raised on behalf of the petitioner is that it is yet premature to consider the question of procedure as the <ORG> is yet to conclude its proceedings. It must also be observed that once it has been held that the <ORG> has the jurisdiction to control the publication of its pro- ceedings and to go into the question whether there has been any breach of its privileges, the <ORG> is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this <ORG> under Art. 32 of the Constitution. <ORG>s have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non- compliance with rules of procedure cannot be a ground for issuing a writ under Art. 32 of the Constitution vide <CITATION> (1). It was also sought to be argued that the subjectmatter of the proceedings in contempt, whatever it was, took place more than three years ago, and that, therefore, it has become much too stale for proceeding (3)  S.C.R. 344.

against the petitioner in contempt. In our opinion, this is also a matter within the jurisdiction of the legislature which must decide whether or not it was recent enough to be taken serious notice of, or whether any punishment in the event of the petitioner being found guilty is called for. These are matters with which this <ORG> is in no way concerned. Mr. <NAME>, the Government Advocate of Bihar, who appeared on behalf of the respondents, informed the <ORG> that the <ORG> was interested more in the vindication of its constitutional rights than in inflicting any punishment on the petitioner. Hence, no more need be said on this aspect of the matter.

It remains to consider one other point sought to be made on behalf of the petitioner that the <ORG> had no power to proceed against the petitioner for breach of privilege in May, 1957 when we know as a fact that the <ORG> was prorogued several times between May 31, 1957 and November 23, 1959. In our opinion, there is no substance in this contention, for the simple reason that the prorogation of the <ORG> does not mean its dissolution. The <ORG> remains the same; only its sessions are interrupted by prorogation of the <ORG> according to the exigencies of public demands on the time and attention of the members of the <ORG> and the volume of business of the <ORG> itself. In this connection reliance was placed on the following passage in May's <ORG>ary Practice, 16th Edition, p. 279 " The effect of a prorogation is at once to suspend all business until <ORG> shall be summoned again. Not only are the sittings of <ORG> at an end, but all proceedings pending at the time are quashed, except impeachments by the <ORG> and appeals before the <ORG> of Lords. Every bill must therefore be renewed after a prorogation, as if it were introduced for the first time."

The observations quoted above do not support the extreme contention raised on behalf of the petitioner that the proceedings in contempt are dead for all time. The effect of the prorogation only is to interrupt the proceedings which are revived on a fresh motion to carry on or renew the proceedings. In this case, it is not necessary to pronounce upon the question whether dissolution of the <ORG> necessarily has the effect, of 2 completely wiping out the contempt or the proceedings relating thereto. In our opinion, for the reasons given above, no grounds have been made out for the exercise by this <ORG> of its powers under Art. 32 of the Constitution. The petition is accordingly dismissed. There will be no order as to costs.

Petition dismissed.


<NAME>, J.

1. The appellant in this case brought a suit to recover possession of certain properties which she alleged in the plaint to be partly brahmottar and partly debattar, the latter being dedicated to certain deities of the names of <NAME> and others, and also for the possession of the deities themselves from the hands of the first defendant, <NAME>. Although the plaintiff described part of the properties claimed as her own brahmottar, which had devolved upon her by right of inheritance, it appeared on the hearing before <ORG>, and was admitted by both parties, that the whole of the properties claimed belonged to the deities.

2. The plaintiff's case was that the properties were in the possession of <NAME> as sebait of the idols; that he having no son of his body, took the plaintiff's husband, <NAME>, in adoption, and died in October or November 1859; that <NAME> being then a minor, his mother took possession of the properties on his behalf, the right of sebaitship having devolved upon him in the same way as any other property of the deceased would have devolved upon him by right, of inheritance; that the idols were established by a remote ancestor of Her husband, and the right had devolved from one person to another, following the rule which governs the succession of an ordinary heritable property.

3. The plaintiff further alleged that the mother remained in possession, on behalf of her minor son, up to 1863, when he died, and the right of sebaitship devolved upon the plaintiff, as his widow, but she being then a minor her mother-in-law managed <NAME> for her up to the time of her death, which occurred in March 1864'; that upon the death of her mother-in-law, the first defendant, <NAME>, one of the respondents in this appeal, who was the natural father of <NAME>, attempted to take possession of the properties along with <NAME>, and was opposed on her behalf by her father and maternal uncle, the second and third defendants and also respondents, and that a compromise was effected between them, which the plaintiff sought to set aside as collusive. As the father and uncle do not appear to have had any legal authority to act as the plaintiff's guardians and the compromise has not been relied upon, it is unnecessary to notice it further.

4. The defence of <NAME> was, that the suit was barred by the law of limitation; that the adoption of the plaintiff's husband was not valid according to Hindu law; that the plaintiff, being a female, was not competent to perform the duties which ordinarily devolve upon a sebait, and to fill the office; and that, according to the usage of the family, and the rules regulating the appointment of mohants to the guddi, he was entitled to succeed to <ORG> estate on the death of <NAME>, and the plaintiff had no right whatever; that originally <ORG> was founded by an ancestor of the present <NAME> of Pachit, and the title of sebait was not complete unless he was confirmed in his appointment by the <NAME>h of Pachit for the time being; and that <NAME> Nilmoni Singh Deo, the present <NAME>h, had made the confirmation in his favour. <NAME>h Nilmoni Sing Deo was added as a defendant; and put in a written statement to the same effect as the last allegation.

5. <ORG> decided the question of limitation in the plaintiff's favour, and the defendants did not appeal from that decision. It then found that the plaintiff's husband <NAME> was duly adopted by <NAME>, and the customary ceremonies of adoption were performed, but that, he being the eldest son of <NAME>, his adoption by <NAME> was invalid.

6. The suit was dismissed, and the plaintiff appealed to <ORG>, which held that the lower Court was wrong in holding that the adoption of the plaintiff's husband was invalid by reason of his having been the eldest son of his natural father; but upon the question whether the plaintiff was entitled upon the death of her husband to succeed as sebait, the Court held that although there was no satisfactory evidence that the appointments of sebait had been made by the Rajah of <NAME>, the evidence did not establish the plaintiff's right to succeed under the Hindu law of inheritance. The appeal was therefore dismissed.

7. The plaintiff has appealed to Her Majesty in Council, and it has been contended on her behalf that, in the absence of prescribed rules, or usage, the ordinary law of inheritance applies.

8. It appears to follow from the judgments of their Lordships in <NAME> v. Nundokissore Doss Mohant 11 Moore's I.A., 428, <CITATION> . 1 I.A. 209 and <NAME> v. <NAME> [L.R. 4 I.A., 76 (see p. 83): S.C., I.L.R., 1 Mad., 235], that when, owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage.

9. The greater part of the villages in dispute were dedicated to the idols more than a century ago, by the then <NAME> of Panchkot or Pachit, and from time to time other villages have been added to the endowment. The first sebait was <NAME>, who left an only daughter, <NAME>, who married, and had issue an only daughter, <NAME>; she married, and her only issue was a daughter, <NAME>, and according to the plaintiff's case <NAME> had an only daughter, <NAME>, who married <NAME>, and had a son Srinibash, the grandfather of the plaintiff's husband. The plaintiff asserted that the four daughters succeeded each other as sebaits; the defendant <NAME> on the contrary asserted that their husbands were the, sebaits. It appeared however, that <NAME> held the guddi for nearly 60 years, her husband having died first, which is inconsistent with the latter contention. Now, whether the four daughters succeeded each other or their husbands were the sebaits, the succession was not according to Hindu law, as a daughter's daughter is not an heir except in certain cases of stridhan, and a son-in-law has no right of succession. There is no doubt considerable difficulty in ascertaining what is the rule of succession to this office, but it is certain that the usage has not been according to the ordinary rules of inheritance under Hindu law. Not only does the usage not support the plaintiff's claim, but it is opposed to it. It is not for their Lordships to consider whether there is any infirmity in the title of the respondent <NAME>, who has been in possession many years, with the consent, if not by the appointment, of the <NAME>. The plaintiff being out of possession must recover upon the strength of her own title, and not on the weakness of that of the defendant. Their Lordships have, therefore, only to consider whether the appellant has made out her title, and they are of opinion that <ORG> was right in holding that she had not. They will humbly advise Her Majesty to confirm the judgment of <ORG>, and to dismiss the appeal. The costs will be paid by the Appellant.


JUDGMENT <NAME>, J.

1. This is an appeal by special leave from a judgment of <ORG> in a reference under section 66(2) of the Income-tax Act. The assessee is the appellant. Messrs. <NAME> (assessee) is a Hindu undivided family consisting of the four sons and grandsons of <NAME>. We are concerned with the four brothers, whose names are <NAME>, <NAME>, <NAME> and <NAME>, and one <NAME>, son of <NAME>. The family does business in grains, kirana etc. at <ORG>, under two names, <NAME> and <NAME> <NAME>. The family through its <ORG> was also a partner in another firm called <NAME> <NAME>, in which the <ORG> had a 12 annas share, and one <NAME>, a stranger to the family, had the remaining 4 annas share.

2. We are concerned with the assessment year, 1953-54. <ORG>, the karta, entered into two agreements with the other members of the family, by which the junior members agreed to serve the Hindu undivided family on monthly payments of Rs. 200 to <NAME>, Rs. 150 each to <NAME> and <NAME>, and Rs. 100 to <NAME>. By the first agreement, <NAME> and <NAME> were to look after the interests of the Hindu undivided family in the partnership, and the two others were to look after the business of the Hindu undivided family.

3. In the year of account relative to the assessment year, 1953-54, Rs. 6,600 were paid as remuneration to the four junior members. Rs. 3,850 were paid to <NAME> and <NAME> for their services to the partnership and Rs. 2,750 to <NAME> and <NAME> for their services to the Hindu undivided family. The Income-tax Officer, <NAME>, by his assessment order dated December 31, 1953, only allowed as expenses a payment of Rs. 50 per month to <NAME>. The rest of the claim made under section 10(2)(xv) of the Income-tax Act amounting to Rs. 6,000 was disallowed. The order of the Income-tax Officer was confirmed by the Appellate Assistant Commissioner; but <ORG> on appeal allowed the deduction of the full remuneration paid to <NAME> and <NAME>. The <ORG>, however, did not allow the deduction of the amounts paid to <NAME> and <NAME>, which, as already stated, totalled Rs. 3,850. The assessee made an application under section 66(1) of the Income-tax Act;

"Whether in the facts and circumstances of the case, the assessee, namely, the Hindu undivided family, who is a partner in the partnership business of <NAME>, is entitled to a deduction of Rs. 3,850 from the assessment of income-tax for the relevant year under section 10(2)(xv) of the Income-tax Act ?"

4. This question was answered by the high Court against the assessee. <ORG> unfortunately erred in apprehending the finding of fact given by the <ORG>, and much is made of this in the appeal before us. <ORG> in the course of its judgment observed [[1959] 37 I.T.R. 528, 532.] :

"We, therefore, proceed upon the footing that the finding of fact of the income-tax authorities in this case is that neither <NAME> nor <NAME> has rendered any service to the partnership business nor contributed to the earning of profits to the Hindu undivided family from the share of the partnership business ?"

5. What the Tribunal held was mentioned in the case stated to <ORG>. There, the Tribunal observed :

"The <ORG> by its order dated September 28, 1955 which is annexure 'B' hereto and forms part of the case, held that these payments of salaries to the persons who worked for the Hindu undivided family were admissible but that the payment to <NAME> and <NAME>, amounting to Rs. 3,850, was not, as the members did not render any service to the Hindu undivided family's business but to the firm, which was a separate entity and for services for which the liability was on the firm."

6. In our opinion, this finding of the <ORG>, which has been relied upon by the assessee, makes its case even more difficult. A Hindu undivided family is allowed to deduct salaries paid to members of the family, if the payment is made as a matter of commercial or business expediency; but the service must be to the family. It was held by this court in <CITATION> , that "partnership" being the relation between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all, and "persons" who enter into the partnership being called individually "partners" or collectively "a firm" the word "person" contemplates only natural or artificial, i.e., legal persons and neither a firm nor a Hindu undivided family can be that person. It was again recently emphasised in the case of <CITATION> , that where a Hindu undivided family becomes a partner through its <ORG>, the coparcenary has no place in the partnership but only the <ORG> is everything, and in <CITATION> it was pointed out that both, under the Hindu law and under the law of partnership, the Hindu undivided family as such can exercise no control and management over the business of a partners ship, Of which the coparcenary is a member through the <ORG>.

7. All these cases show that if the junior members of the coparcenary were serving the partnership, they were serving an entity, which was separate and distinct from the Hindu undivided family. If the coparcenary had no place in the partnership, any service to the partnership any service to the partnership cannot be described as service to the Hindu undivided family, sufficient to attract the application of section 10(2)(xv) of the Income-tax Act, because it cannot be said to be wholly and exclusively for the Hindu undivided family.

8. In our opinion, the answer to the question was rightly stated by <ORG> in the negative, though for reasons which we have indicated here.

9. The appeal fails, and is dismissed with costs.

10. Appeal dismissed.


JUDGMENT Leach, <NAME>

1. These appeals and civil revision petitions arise out of proceedings instituted in <ORG> of Devakottah, with reference to the estate of one RM.AR.AR.RM. <NAME>, who died on 23rd February 1938. Appeals Nos. 321 of 1940, 3,104 and 239 of 1941 are from a preliminary decree passed by the Subordinate Judge in a suit for the administration of the estate. The petitions ask for the revision of orders passed in the suit. C. M. A. No. 282 of 1941 is against an order granting probate of a will executed by Arunachalam on 8th January 1938. These matters have been heard together and can be dealt with conveniently in one judgment.

2. The testator, who was a member of the Nattukottai Chettiar community was a very wealthy man. His personal assets have been estimated to be worth Rs. 39,66,100. He had assets in British India, Burma, Federated Malay States, Ceylon and French Cochin China. In addition, he was the trustee of numerous charities, the endowments of which are said to aggregate in value Rs. 24,00,000. He married three times. By his first wife, who predeceased him, he had a son and three daughters. The son also predeceased him. The daughters are alive and have married. His second and third wives survived him. There was no issue of the second marriage and by the third wife he had a daughter, who died during the pendency of the administration suit. His son married <NAME>, the plaintiff in the administration suit. There was no issue of this marriage.

3. By his will the testator nominated as his executors <NAME> (a cousin) and CT.L.RM. Arunachalam Chettiar (a son-in-law). He directed that his widows should each adopt a son and that the plaintiff should do likewise. Only boys approved of by the executors were to be adopted. The testator directed that certain legacies should be paid. The legacies were substantial in amount but they absorbed comparatively little of the estate. He indicated that the trusts should devolve upon his heirs, and after making other provisions to which reference is not necessary he gave these directions:

As soon as each of the adopted sons becomes a major as stated above they shall also manage the properties along with the executors.

The matters relating to charity and trust shall be kept in common and managed and as soon as all the sons become majors, the estate and the properties relating to charity and trust should be handed oven to them. They (the adopted sons) shall co-operate with each other and maintain and manage the estate in common to the extent that it is possible for them to maintain and manage it in common. At the time when they wish that a division should be effected, they may do so.

The will contains no directions with regard to the disposal of the residue of his personal estate. Neither of the widows has adopted a son, nor has his daughter-in-law.

4. On 11th July 1938 the daughter-in-law filed the suit for the administration of the estate and the partition of the assets among the heirs. The senior widow was made defendant 1, the junior widow defendant 2 and the two executors defendants 3 and 4 respectively. The plaintiff averred that the will was invalid because the testator was not in a sound state of. mind when he signed it and that the executors had exercised undue influence on him. Defendant 3 was an undischarged insolvent and it was said that defendant 4 was in indigent circumstances. She alleged that it would be disastrous to leave them in the management of the estate. She claimed that by virtue of the provisions of the Hindu Women's Rights to Property Act , 1937, she was entitled to a half share in the whole of her father-in-law's estate and defendants l and 2 to the other half. In the event of the Court holding the will to be valid there was, she said, still an intestacy with regard to the bulk of the estate. Further she claimed that sums constituting her own stridhanam and that of her deceased mother-in-law to which she said she was also entitled had been deposited with the testator and asked that these monies should be paid over to her.

5. While supporting the plaintiff in her attack on the will and the management of the estate by the executors defendant 1 averred that a fortnight before his death the deceased had orally authorised her to adopt a son to him; that even if the will were valid the direction that the executors should approve of the boy to be adopted was merely advisory, not mandatory, that the directions given to the junior widow and to the daughter-in-law to adopt sons were invalid; that the Hindu Women's Rights to Property Act , 1937 and the amending Act of 1938 (Act 11 of 1938) were ultra vires <ORG>; and that she, as the senior widow was entitled to inherit the full estate and have the management of the trust properties. In her written statement defendant 2 supported the will, but averred that in the event of the Court holding it to be invalid she and defendant l were entitled to share the inheritance. She denied any right in the plaintiff for the same reason as defendant 1 had advanced, namely, that the Hindu Women's Rights to Property Act , 1937 and the amending Act of 1938 were ultra vires <ORG>. Inferentially she denied that there was any intestacy. Defendants 3 and 4 maintained that the testator was in a sound state of mind when he executed the will and denied that they had exerted any undue influence. They averred that the will was valid and that it disposed of the whole of the testator's estate. They claimed that they were bound to administer the estate and accumulate the income for the benefit of the boys to be adopted in accordance with the directions given in the will. The pleadings contain other averments, but it is not necessary for the purpose of deciding the questions which arise in the appeals and petitions now under consideration to refer to them.

6. On 12th July 1938, the day after the institution of the administration suit, the plaintiff applied for the appointment of a receiver for the preservation and management of the estate until the disposal of the suit. This application was opposed by the executors, but it was granted by the Subordinate Judge in an order dated 18th August 1938. He appointed two receivers, both of whom were advocates practising in his <ORG>.

7. On 4th August 1937 the executors applied for probate of the will. The grant was opposed by the plaintiff, defendant l and two of the daughters of the testator by his first wife. The third daughter of the testator by his first wife is the wife of defendant 4. She supported the grant as did <NAME>, a sister of the deceased; The application for probate was heard with the administration suit and was dealt with in a judgment dated 26th October 1940, when judgment was also delivered in the administration suit. In his judgment in the probate proceedings the Subordinate Judge held that the allegations that the testator was not of a sound disposing state of mind and that the executors had exerted undue influence on him had not been proved. C. M. A. No. 282 of 1941 was filed by the plaintiff with the object of obtaining the reversal of this decision. In this Court all the parties have, however, accepted the validity of the will, although they are not in agreement as to the effect of some of its provisions. As the will is now accepted c. M. A. NO. 282 of 1941 will be dismissed and the appeals from the preliminary decree passed in the administration suit proceeded with on the basis that the will was executed by the testator when in a sound disposing state of mind and without being subjected to any undue influence.

8. The finding of the Subordinate Judge in the administration suit, so far as they are relevant, to the appeals were (i) the testator had died intestate except with regard to the legacies; (ii) the residue of the estate devolved upon his heirs according to his personal law; (iii) the testator had no power to give, directions with regard to the management of the trust properties, which also devolved upon his heirs; (iv) the Hindu Women's Rights to Property Act , 1937, was intra vires the <ORG>; (v) by reason of that Act the plaintiff was an heir and was entitled to a half of the residue of the personal estate of the deceased; (vi) the testator's widows were entitled to the other half in equal shares; (vii) the Hindu Women's Rights to Property Act , 1937, did not make the plaintiff an heir so far as the trust properties were concerned; (viii) the testator's widows alone could claim the right to possession and management of the trust properties; (ix) the estate was of such magnitude that it would be dangerous to entrust the assets to the plaintiff and defendants l and 2 without safeguards and it was desirable that the properties should be left in charge of an officer or officers of the <ORG> until safeguards had been furnished; and (x) the receivers already appointed should continue to act pending the passing of the final decree.

9. Appeal No. 321 of 1940 has been filed by the plaintiff; Appeal No. 3 of 1941 by defendant l; Appeal No. 104 of 1941 by defendants 3 and 4 and Appeal No. 239 of 1941 by defendant 2. The plaintiff says that the Subordinate Judge erred in not giving her a share in the management of the trust properties, that he erred in directing that the estate shall remain in the possession of an officer or officers of the <ORG> until the heirs entitled to a partition of the assets have furnished safeguards and that he had omitted to deal with her claim to the stridhanam moneys deposited with the testator. In this <ORG> defendants 1 and 2 joined hands. They say that the Subordinate Judge's decision that the Hindu Women's Rights to Property Act , 1937, is intra vires is erroneous and that in any event the plaintiff is not entitled to a share in any of the properties left by the deceased outside British India. The complaint of defendants 3 and 4 is that the Subordinate Judge did not leave them in the management of the trust properties. Mr. <NAME>, who appeared on their behalf, said that they had no objection to the personal estate of the testator being administered by the <ORG> in the administration suit, but that his clients were interested in the proper management of the trusts and they claimed a right to be associated in the management.

10. It is quite clear that the testator died intestate with regard to the bulk of his estate. In fact the appeals have proceeded on that basis. At present the <ORG> is not in a position to decide on whom devolve the immovable properties left by the deceased outside British India because succession here will, it is agreed, be determined by the lex loci rei sita and there has been no inquiry into the law of succession in the various foreign countries. In these circumstances the parties desire that <ORG> shall, in the course of the administration of the estate, investigate this matter and in the final decree direct on whom the foreign immovables are to devolve. It has also been agreed that the plaintiff's claim to the moneys described by her as stridhanam shall be investigated by <ORG> in the course of the administration and likewise dealt with in the final decree. Further, it has been accepted that the Subordinate Judge erred in directing the estate to remain in the hands of an officer or officers of the <ORG> until the heirs have provided safeguards against waste. The heirs of the testator are entitled to a division of his personal estate without furnishing such safeguards. A female heir only takes a limited interest, but she is entitled as of right to be placed in possession of her share. Should it transpire that she is dissipating moneys which have come to her and is thereby defeating the reversioner he can ask the <ORG> to insist on security being furnished, but such a position could only arise after partition. An unlawful alienation of immovable property does not affect the reversioner's rights. He is entitled to gain possession of it when the estate falls in. The same principles apply to the trust properties. Either the heirs or the executors are entitled to be placed in possession of them as soon as it is conveniently possible. Therefore the directions given by the Subordinate Judge in this connexion must be set aside.

11. The questions which remain for decision in the appeals from the preliminary decree passed in the administration suit are these : (1) Is the Hindu Women's Rights to Property Act , 1937, intra vires the <ORG>? (2) If it is, what rights does it confer upon the plaintiff? and (3) Who are entitled to possession and management of the trust properties?

12. After the Subordinate Judge had delivered his judgment <ORG> considered the validity of the Hindu Women's Rights to Property Act , 1937, on a reference made to it by the Governor-General in <ORG>, In re Hindu Women's Bights to Property Act , 1937 ('41) 28 A.I.R. 1941 F.C. 72, and held that its provisions are intra vires the <ORG> except in so far as they affect agricultural lands in the Governor's Provinces. To that extent the Act is unlawful, and therefore persons who are constituted heirs by the Act are given no share in agricultural holdings left by a deceased Hindu in a Governor's Province. Sub-section (1) of Section 3 as it originally stood was in these words:

When a Hindu governed by <ORG> dies intestate his property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property that separate property shall, subject to the provisions of Sub-section (3) devolve upon Ms widow along with his lineal descendants, if any, in like manner as it devolves upon a son;

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

Sub-section (3) states that any interest devolving on a Hindu widow under the provisions of the section shall be the limited interest known as a Hindu Women's estate, provided, of course, that she shall have the same right of claiming partition as a male owner. By Act 11 of 1938, para. l of Sub-section (1) was amended. When there is more than one widow, the widows together are now entitled, subject to the provisions of Sub-section (3) to the same share as a son. The amending Act also inserted a new section, Section 5 , which states that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

13. It is manifest that this Legislation has made the plaintiff an heir to the separate property left by the deceased in British India, exclusive of course, of the agricultural lands. It has, however, been contended on behalf of defendants 1 and 2 that the personal estate left by the testator was not separate property within the meaning of the Act because the testator was joint with his father and what he died possessed of was property which had come to him as the surviving member of the joint family. It is said that the Act only applies to property which a person has acquired otherwise than by survivorship. We are not prepared to interpret the Act in this restricted sense. It was placed on the statute book in order to give a widow and a predeceased son's widow a share in the estate of the deceased over which he had a disposing power. In our opinion the insertion of Section 5 puts this beyond doubt. The testator had full disposing power over all the properties of which he died possessed except with regard to the trust properties and Mr. <NAME> who has appeared for defendant l and whose arguments have been adopted by Mr. <NAME> Iyengar on behalf of defendant 2, has conceded this. We hold that the personal estate of the testator constituted his separate property within the meaning of the Act.

14. With regard to the trust properties the position is different. In no sense can they be regarded as the separate property of the testator. <CITATION> ('43) 30 A.I.R. 1943 P.C. 89 <ORG> held that Sebaiti is property, it is not a catena of successive life estates, but it is heritable-heritable property which in the first instance is vested in the founder. Sebaiti is trust property and the various trust properties held by the deceased constituted heritable estates because in respect of all of them succession to the trusteeships passed to his heirs. The plaintiff cannot claim to be an heir to the trust properties under her personal law. She can only come in if the statute allows her to do so and it does not. It only applies to property which belonged to deceased person in his own right. The Subordinate Judge came to the correct decision when he held that the only heirs of the testator, so far as the trust properties are concerned, are the testator's widows.

15. It has now to be considered whether the Hindu Women's Eights to Property Act , 1937, gives the plaintiff a share in the moveable properties which were held by the testator in foreign countries because here the lex loci rei sita does not apply. Succession is governed by the law of domicile of the deceased/Defendants 1 and 2 contend that the Hindu Women's Rights to Property Act does not give the plaintiff a share in the moveable properties held abroad, and we consider that the contention must be accepted. The presumption is that a <ORG> deals with matters only within its own jurisdiction. This principle was fully discussed by Lord <NAME> in <NAME> v. <NAME> (1890) 25 Q.B.D. 129. The respondent in that case had insured his life with <ORG>, which had been incorporated by a Special Act of the <ORG> of the State of New York. He claimed to be entitled to deduct the amount of the premium in calculating his income liable for English Income-tax. The surveyor of taxes contended that the deduction was only allowable by the Income-tax Act then in force in respect of insurances effected with companies registered in the United Kingdom, and this contention was upheld. Lord <NAME> said:

What is the rule of construction which ought to be applied to such an enactment, standing alone? It seems to me that, unless <ORG> expressly declares otherwise in which case, even if it should go beyond its rights as regards the comity of nations, the <ORG> of this country must obey the enactment, the proper construction to be put on general words used in an English Act of <ORG> is, that <ORG> was dealing only with such persons or things as are within the general words and also within its proper jurisdiction and that we ought to assume that <ORG> (unless it expressly declares otherwise) when it uses general words is only dealing with persons or things over which it has properly jurisdiction. It has been argued that that is so only when <ORG> is regulating the person or thing which is mentioned in the general words. But it seems to me that our <ORG> ought not to deal in any way, either by regulation or otherwise, directly or indirectly, with any foreign person or thing which is outside its jurisdiction, and, unless it does so in express terms so clear that their meaning is beyond doubt, the <ORG> ought always to construe general words as applying only to persons or things which will answer the description and which are also within the jurisdiction of <ORG>.

In this case there is more than a presumption that in placing the Hindu Women's Eights to Property Act on the statute book <ORG> intended to legislate only with regard to properties within its jurisdiction. Sub-section (2) of S. l, as it originally stood stated that the Act extended to the whole of British India, including British Baluchistan and the Sonthal Parganas, but excluding Burma. The Act received the assent of the Governor-General on 14th April 1937; but when it was passed by the <ORG> Burma was a part of British India. The separation only took place on 1st April 1937. The very fact that Burma was excluded shows that the <ORG> intended the Act to apply only to property within British India. The words "including British Baluchistan and the Sonthal Parganas but excluding Burma" were taken out of the sub-section by the Repealing and amending Act of 1940 (Act 32 of 1940). By this time it was not necessary to have a provision expressly excluding Burma because Burma was no longer a part of British India. There is here very strong indication that the Act was never intended to apply to any kind of property situate outside British India.

16. It follows that in our judgment the plaintiff is entitled to a half share of the personal estate of the deceased lying within British India, exclusive of agricultural lands, but that she is not entitled to any share in the moveable properties outside British India. Whether she is entitled to any share in the immovable properties abroad will depend upon the result of the investigation to be held with regard to the laws of succession in the various foreign countries.

17. The last question relates to the rights to possession of the trust properties and this is the only question with which the executors are now concerned. They maintain that the will entitles them to remain in possession of the properties until an adopted son has attained the age of majority. We have already indicated that in no case had the testator the right to appoint his successor. Some of the trusts had been created by himself and others by his father, but in no instance was the holder of the office of trustee for the time being empowered to nominate his successor. In respect of some of the trusts the testator shared the duties of trustee with others. Three of the deeds of trust have been exhibited, and marked as Exs. 3, 4 and 5. Exhibit 3 is a declaration of trust signed by the testator on 23rd November 1924. He created himself the trustee for life and directed that his heirs and after their lives their heirs should be the trustees "hereditarily". Exhibit 4 is dated 31st July 1926. It would appear to apply to trusts created before the testator's time. It states that, for the proper conduct of the above charities we shall during our lifetime be the trustees and then our heirs, and, after their lifetime their heirs shall be trustees, hereditarily and manage the same maintaining proper account therefor.

Exhibit 5 is a deed of a similar nature and contains the same provision.

18. As in England the law in this country is that where a trustee is the sole or surviving trustee the estate descends to his personal representative unless the deed of foundation otherwise provides. Therefore all the trusts of which the testator was the trustee devolved upon his personal representatives. The executors say that they are his personal representatives by reason of S, 211, Indian Succession Act , 1925, and this is true, but this does not mean that they are entitled in law to retain possession of the trust properties. These properties devolve on the testator's heirs, who are here his widows and the duty of the executors, had receivers not been appointed, would have been to deliver them to the widows. The testator had no power to direct that the executors should remain in possession until such time as his directions with regard to adoption were fulfilled. In <NAME> v. <NAME> See(38) 47 M.L.W. 217 this Court held that a widow could not be compelled to follow her husband's wishes in the matter of adopting a son, however strong the directions of her husband might have been and the could not be deprived of her widow's interest in his property because she might at some ... later stage decide to follow his directions. In this case there has been no adoption and for the time being the testator's directions in that respect must be ignored, even if they are all valid as to which we express no opinion.

19. We will now deal with the two civil revision petitions, C. R. P. No. 814 of 1941 has been filed by defendant 2. The will provided for the payment of the sum of Rs. 75,000 to each of the testator's daughters. In the books of the deceased the sum of Rs. 1004-1-0 stands to the credit of his deceased daughter by defendant 2, and the sum of Rs. 2300 to the credit of defendant 2 herself. Defendant 2 desired to file an additional written statement claiming that the Rs. 75,000, the Rs. 1004-1-0 and the Rs. 2300 should be paid over to her. The Subordinate Judge dismissed the application because he considered that it had been filed too late and the will itself was in dispute. All parties are now agreed that defendant 2 should have been allowed to file the additional written statement and that the question whether she is entitled to these sums shall be decided in the further proceedings which must take place before the final decree is passed. This is a very proper attitude and the petition will be allowed.

20. C.R.P. No. 1493 of 1941 has been filed by the executors. The Subordinate Judge allowed them their costs in both the administration suit and in the probate proceedings and directed that the costs should be paid out of the estate. The executors applied for further time in which to file their bills of costs and time was granted. They filed them in time, but notwithstanding his earlier order, the Subordinate Judge refused to allow these costs in the preliminary decree. Again all parties are agreed that this was an error and that the executors shall be allowed such costs as are found due to them on taxation. There will be an order accordingly.

21. The preliminary decree passed by the Subordinate Judge will be amended in accordance with the directions given in this judgment and the administration of the estate by the Court will be continued on the lines indicated. The costs of all parties in the appeals and the civil revision petitions both here and below will be paid out of the estate. There will be a certificate for two counsel where two counsel have appeared. A certificate will issue under Section 205 , Government of India Act, 1935.