JUDGMENT <NAME>, J.

1. This writ petition which relates to consolidation proceedings under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act') has been referred to a Full Bench to enable reconsideration of the <ORG> decision of this Court in <NAME> v. <NAME>, 1968 All LJ 223.

2. The facts of the case are briefly these, one <NAME> owned Bhumidhari and Sirdari holdings in village Itara, Pargana Alamnagar, Tahsil Shahbad of district Hardoi, as also land in villages Pihani and Nepania of the same Tahsil and a house in Qasba Pihani. According to the petitioner Smt. <NAME>, who is the widow of <NAME>, the latter made an oral gift on 24-10-1965 of the aforesaid property in her favour exclusively and delivered possession to her. Shortly after <NAME> died. Thereafter Opposite Party No. 4 <NAME>, son of <NAME>, filed an objection claiming exclusive heirship to <NAME> as his son. The petitioner made an objection claiming exclusive right to the aforesaid property on the basis of the aforesaid oral gift in her favour. The Consolidation Officer to whom the controversy was referred by the Assistant Consolidation Officer rejected the petitioner's claim and held opposite party No. 4 to be the heir of <NAME> on his death. The claim on the basis of gift was rejected both on the ground that the gift had not been satisfactorily proved and that permission of <ORG> to transfer the land under Section 5(1) (c) (ii) of the Act while consolidation proceedings were going on in that village, had not been obtained as required and without such permission the transfer was void. An appeal against the decision was dismissed by <ORG>. The petitioner then filed a revision under Section 48 of the Act but the same was also dismissed by the Deputy Director of Consolidation (Opp. party No. 1) who held that the gift which covered both Bhumidhari and Sirdari land could operate only in regard to Bhumidhari land since Sirdari land was non-transferable. About the Bhumidhari land itself he agreed with the conclusions of the aforesaid two lower consolidation authorities. The petitioner then filed this writ petition challenging the order of opposite party No. 1.

3. The petitioner's contention in this court is that since the entire Bhumidhari and the entire Sirdari holding in village Itara was transferred to her, no permission of the Consolidation Officer was required for this transfer. It is also contended that the Deputy Director of Consolidation did not apply his mind nor give his own decision, on the question of gift in regard to which the findings of the two lower consolidation authorities had been questioned in the revision.

4. The writ petition has been contested by opposite party No. 4 who filed a counter affidavit against which the petitioner filed a rejoinder affidavit.

5. A perusal of the order of the Deputy Director of <ORG> of which a copy will be found as Annexure 1 to the writ petition, shows that he proceeded to state in the second paragraph of his order the argument that was advanced before him on behalf of the revisionist (petitioner) by her counsel on the two questions of necessity of obtaining permission of <ORG> and the proof of the fact of gift. Then observing that "there is considerable force in the arguments of the learned counsel for opposite parties" he proceeded to consider only the question whether permission was required and held that it was required. The statement about existence of force in the arguments might very well have been intended to relate to the point of need for permission which was discussed in the ending part of the paragraph. There is substance, therefore, in the argument on the petitioner's side that the order would show that the question whether the gift had been proved or not was never considered by the Deputy Director of <ORG>. The order on this ground needs therefore to be quashed, but only in case it is not found justified on account of the absence of permission of <ORG> for making the transfer. The finding of the <ORG> authorities that permission is necessary will now be examined.

6. The relevant part of Section 5 of the Act is reproduced below:--

"5. Effect of Declaration. -- (1) Upon the publication of the notification under Section 4 in the Official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the declaration relates; namely ******

(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950, no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-

(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area:

Provided that a tenure-holder may continue to use his holding or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under Section 4." The contention of the petitioner's learned counsel is that the bar to transfer by way of sale, gift or exchange without the permission of <ORG> created by Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 5 is in respect of part of the holding in the consolidation area and if the whole holding is transferred, no permission will be necessary. On the other hand, the contention on behalf of opposite party No. 4 is that the said Sub-clause (ii) of Clause (c) creates a bar to transfer without permission, be it part of the holding or the whole holding. Two cases have been cited at the bar in this connection. One is a Single Judge decision in <NAME> (<NAME>) v. <NAME>, 1962 RD (HC) 226 in which a provision not very similar to that in Section 5 (1) (c) (ii) and contained in old Section 16-A of the Act was interpreted. Sub-section (1) of Section 16-A ran as below:--

"16-A (1) -- After the publication of the statement under Section 16 and until the issue of a notification under Section 52, a tenure-holder shall not, except with the permission in writing of the Settlement Officer (Consolidation) previously obtained transfer by way of sale, gift or exchange any plot or share in any holding included in the scheme of consolidation notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950."

On a question arising whether the bar to transfer without the permission of the Settlement Officer (Consolidation) existed only where part in any holding was transferred or also to the transfer of the holding as a whole, <NAME> held that it extended to the transfer of a holding as a whole as well. The reason given for the finding was that the provision meant that one or more of the plots of the Khata could not be transferred without permission and so it was not possible to accept the contention that though one or more plots of Khata could not be transferred, the whole Khata could be transferred without permission. There was no elaboration but the reasoning appears to have been that when the transfer of any plot or share of a holding was prohibited it meant a prohibition against a transfer of the whole holding as well.

The provision in Section 5 (1) (c) (ii) directly came to be considered by a learned Single Judge of this Court in a writ petition case. He took the view that the prohibition was only against the transfer of part of a holding and not of the whole holding. On a special appeal being filed the view taken by the learned Single Judge was affirmed. The special appeal case, is reported in 1968 All LJ 223. It appears from the report of the case that though the learned Single Judge was aware of the broad proposition that where there is a prohibition against the transfer of a part of the holding it should be construed to mean prohibition against the transfer of the whole holding, yet for two reasons he held the said Sub-clause (ii) of Clause (c) to contain a prohibition against transfer of a part of a holding only and not the whole holding. One reason was that while in Sub-clause (i) of Clause (c) the <ORG> had used the words 'his holding or any part thereof thereby clearly indicating the provision in that sub-clause to apply both to the holding as a whole and to any part thereof, in Sub-clause (ii) of the same Clause (c) different words were used, they being 'any part of his holding'. This difference in language appeared to the learned Single Judge to indicate that in the case of Sub-clause (ii) the provision was meant to apply only 'to any part' but not to the whole. In our view it is not possible to make much out of this difference in phraseology between Sub-clauses (ii) and (i) as it is not possible to say with certainty that this difference was deliberate. The words 'any part of his holding', if used in Sub-clause (i) in place of the words 'holding or any part thereof would rot bring about any change in the meaning of Sub-clause (i), for it would not even then be possible to say that the prohibition about using the holding for purposes not connected with agriculture, etc. related to a part only of the holding and not the whole, though of course the expression 'holding or any part' makes the provision more obvious in regard to its being applicable to the whole holding also besides being applicable to any part thereof.

Having regard to the nature of the prohibition in Sub-clause (ii), if emphasis is placed on the word 'any' In the expression 'any part of his holding', then the prohibition would extend to the whole as well, but if emphasis is placed on the word 'part' in the same expression, then it would extend to a part of the holding only and not to the whole. If the word 'only' had appeared after the words 'any part' the position would have been beyond controversy and the provision would have extended only to the transfer of a part of the holding and not to the whole holding. Sub-clause (ii) by itself is thus open to both the interpretations and the proper interpretation to be placed upon it has therefore to be determined having regard to the object underlying the prohibition and the scheme and object of the Act as a whole. The prohibition contained in the sub-clause is a restriction upon the fundamental right conferred by Clause (f) of Article 19 of the Constitution of India, of course in cases where the nature of the holding carries with it the right of transfer under the U.P. Zamindari Abolition and Land Reforms Act. The restriction must be justifiable in order to be valid. The meaning to be given to Sub-clause (ii) must be arrived at, therefore, having regard also to the requirement of keeping the sub-clause valid. In other words, if out of the two interpretations possible, one will maintain the validity of the sub-clause while, the other will not, then the first interpretation should be adopted.

7. The second reason for the interpretation placed by the learned Single Judge and <ORG> on the sub-clause to the effect that it prohibits without the permission of the Settlement Officer (Consolidation) transfer of a part only of a holding and not the whole was that the object underlying the prohibition was fulfilled by prohibiting the transfer of a part only of a holding and did not call for prohibition of transfer of the holding as a whole. During consolidation operations complications will arise if only part of a holding is transferred because then there will spring up two tenure-holders the original tenure-holder holding one part and the transferee holding the other part leading to complications. If however the whole holding is transferred then all that will be necessary in carrying out the consolidation operations in progress will be to substitute the name of the transferee in place of that of the original tenure-holder. There is no doubt that if it can be shown that the transfer of the whole holding will not create any complications and hindrance in the progress of the consolidation operations then the restriction in regard to transfer of the whole holding would be unjustified and unreasonable and therefore hit by Article 13 read with Article 19(1)(f) of the Constitution.

8. In connection with this question of complication arising in the consolidation operations by reason of transfer, the question arose at the hearing as to why there would be no complication if a whole holding was transferred. If a person holds two or more <NAME> of <NAME> holdings and one <NAME> is transferred then it might mean disturbing the proposed or even finalised chaks. The tenure-holder owning these <NAME> could have been given one or more Chak in lieu of those <NAME> <NAME> and if he transfers one <NAME> then the <NAME> proposed or finalised would have to be disturbed and out of them or otherwise a chak would have to be carved out for the transferee. <NAME>, learned counsel for the petitioner, however, urged before us that no such contingency would arise as under the meaning given to the expression 'holding in the Act the whole land held by a tenure-holder as a Bhumidhar even though recorded in the Khitauni under different <NAME> would be one holding and therefore, if one <NAME> only is transferred it would be a case of a transfer of the part of the holding and not of the whole holding. We find there is force in his contention. The consolidation of Holdings Act contemplates that the whole land held by a person under one tenure -- <NAME> or <NAME> --will be comprised in one <NAME> holding or in one <NAME> holding, as the case may be. A person may have both one <NAME> holding and one <NAME> holding but he cannot have two of either.

In the Consolidation of Holdings Act certain words and expressions' have been defined in Section 2 and thpy include the expressions 'tenure-holder' and 'holding'. According to Sub-clause (ii) of the section, 'tenure-holder' means a 'Bhumidhar' or 'Sirdar' of the land concerned and includes an 'Asami'. This expression has not been defined in the U.P. Zamindari Abolition and Land Reforms Act. It has also not been defined in the U.P. Land Revenue Act. No doubt in the U.P. Zamindari Abolition and Land Reforms Act it has been provided that there will be three classes of tenure holders Bhumidhar, Sirdar and Asami and the definition of tenure-holder in the U.P. Consolidation of Holdings Act will therefore appear to be based on the meaning and classification of 'tenure' and 'tenure-holders' in the former Act.

9. The expression 'holding' has been specifically defined in the U.P. Consolidation of Holdings Act. To under stand the implications of this definition, reference may first be made to the definition of holding contained in Clause (7) of Section 3 of the U.P. Tenancy Act, 1939 which definition also holds good for the U.P. Zamindari Abolition and Land Reforms Act by virtue of Clause (26) of Section 3 of that Act. The said definition of holding reads:--

" 'holding' means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area."

It will appear that under the above definition if there are several separate leases, engagements or grants then the same person or set of persons can possess several holdings of the same tenure. However 'holding' as defined in Clause (4-C) of Section 3 of the U.P. Consolidation of Holdings Act means 'a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders.' This definition has no connection with the source of acquisition of the tenure, and purports to include all land held under one tenure. So all land held as <NAME> by a person in the consolidation area will be one holding. So there will be a transfer of a whole holding held under the <NAME>i tenure only when all land held as <NAME> is transferred irrespective of the fact that the said land may have been shown, before consolidation, under more than one <NAME> numbers.

Accordingly if the whole holding is transferred that will not disturb the progress of the consolidation proceedings. The scheme of U.P. Consolidation of Holdings Act is to treat a person as a <NAME> tenure-holder or <NAME> tenure-holder and not to have separate holdings under the same tenure. This is apparent in the instant case from the documents filed in which all plots of land held by the deceased <NAME> as <NAME> are grouped together and corresponding chak or chaks were allotted together in lieu of that land and similarly all plots of land held as sirdar was grouped together for allotting a chak or chaks in lieu thereof as constituting one holding. We are accordingly of the view that it will be only part of a holding under one tenure, if transferred by a tenure-holder during consolidation operations, that would create complications and the object of speedy consolidation would be thwarted, but if the whole holding is transferred that position will not arise. The <ORG> must be presumed not to have intended to place more restrictions than were necessary or to have intended to make an invalid provision hit by Article 13 read with Article 19(f) of the Constitution. We are accordingly of the opinion that with the meaning of 'holding' as clarified above, Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 5 restricts only the transfer of any part only of the holding of a tenure-holder and not the whole holding and in our view the <ORG> case referred to above was correctly decided on the basis of a similar interpretation placed on Sub-clause (ii) of Clause (c) of Sub-section (i) of Section 5 of the Act.

10. In view of the above interpretation of the term 'holding' the land held by the deceased <NAME> as 'Sirdar' constituted a separate holding from the land held by him as Bhumidhar. So if the alleged oral gift comprised his entire sirdar land as well as Bhumidhari land, it will operate as a gift of the entire Bhumidhari holding even though the gift with regard to sirdari holding may be void under the U.P. Zamindari Abolition and Land Reforms Act and for that reason it cannot be deemed as a gift of a part of the holding so as to require the permission of <ORG> under Section 5 (1) (c) (ii) as held by the Deputy Director.

11. In the result we allow the writ petition with costs and quash the order of the Deputy Director of Consolidation and direct him to rehear the revision and decide it after considering the question whether the alleged gift has been proved, taking it to be the law that no permission of <ORG> was necessary in the case of transfer of the whole Bhumidhari land held by <NAME> in the consolidation area.

<NAME>, J.

12. I have had the advantage of reading the judgment prepared by brother <NAME>, and though I agree to the order proposed in the writ petition, I would wish to add a few words of my own.

13. The facts are as follows:--Village Itara, Pergana Alamnagar, Tahsil Shahabad, in the district of Hardoi, was brought under consolidation operations by means of a notification under Section 4 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). One <NAME>, husband of the petitioner <NAME>, was the tenure-holder of two <ORG>. 12 and 15 and two <ORG> 224-A and 461. In lieu of these four <NAME>, <ORG> 297 was allotted to him in due course. Before, however, the provisional consolidation scheme could be confirmed, <NAME> died on November 2, 1965. On his death, the petitioner filed a petition claiming the four <NAME> exclusively, on the basis of an alleged oral gift said to have been made by <NAME> in her favour on October 24, 1965, shortly before his death. Her claim was resisted by <NAME>, opposite party No. 4, who denied the gift and asserted himself to be the exclusive heir of <NAME>, as his son. There being no conciliation between the parties, the Assistant Consolidation Officer forwarded the case for disposal to the Consolidation Officer who held that the gift was not proved, that the Sirdari <NAME> were not transferable and could not have been transferred, and in any case, that the gift insofar as it concerned the <NAME>' <NAME>, was void as it was not made with the previously obtained permission in writing of the Settlement Officer, Consolidation, as required by Section 5 (1) (c) (ii) of the Act, and therefore, the petitioner had no title to any of the said four <NAME> and he accordingly dismissed her objection on October 25, 1966.

The petitioner filed an appeal before the Settlement Officer, <ORG>, who confirmed the findings of the <ORG> Officer and dismissed the appeal on February 4, 1967. The petitioner then went up in revision to the Deputy Director, <ORG> who while dismissing the revision on March 26, 1968, made the following observations in his judgment:--

"The learned counsel on the other side, however, pointed out that a part of the <ORG> in dispute is Sirdari land, which could not be transferred and that as such the gift could operate only upon a part of the <ORG> which is Bhumidhari, and, since the effect of the gift was to transfer a part of the <ORG> to the applicant, permission of <ORG> was necessary in terms of Section 5-C (2) of U.P. C. H. Act. He also argued that there are contradictions in the statements of witnesses with regard to the date of gift and that the oral gift appears to be highly improbable in the face of the circumstance that at the time of alleged oral gift several persons were present who used to do the work of writing documents and were well acquainted with the legal procedure, and the deceased had a few years earlier executed a sale deed in favour of the applicant with regard to certain property for the discharge of dower debt, and there is no reason, why this property also was not given to applicant at that very time. There is considerable force in the arguments of the learned counsel for O. Ps."

After the above quoted passage, the Deputy Director merely dealt with the validity of the gift but did not decide the question as to whether or not one had actually been made, unless the decision may be taken to be implied by the use of the words "There is considerable force in the arguments of the learned counsel for the opposite parties."

14. The petitioner, after the dismissal of her revision, filed the present writ petition on July 8, 1968. The argument advanced at the time of the admission of the writ petition was that the prohibition contained in Section 5 (1) (c) (ii) of the Act applied to the transfer of a part of the holding without previous permission but it did not apply if the transfer was in respect of the whole holding and reliance for this proposition of law was placed upon 1968 All LJ 223. <ORG> admitted the writ petition but was of opinion that the decision in <NAME> case, 1968 All LJ 223 required reconsideration by a Full Bench and it is in this manner that this petition is before us.

15. Section 5 of the Act, in so far as it is relevant for the purposes of this petition, reads thus:--

"5 (1) -- Upon the publication of the notification under Sub-section (2) of Section 4 in the Official Gazette, the consequences, as hereinafter set forth shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Sub-section (2) of Section 4 relates namely,--

(c) Notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area." (The portions have been underlined by me.)

16. The debate before us has been with regard to the correct interpretation to be placed upon the use of different phraseology in the two sub-clauses of Clause (c) of the section. The <ORG> has thought it fit to use the words "his holding or any part thereof" in Sub-clause (i), while in Sub-clause (ii), it has used the words "any part of his holding". One line of argument is that the <ORG> was well aware of the difference in the phraseology used in the two sub-clauses and while in Sub-clause (i) it intended to legislate that the entire holding was affected as also a part thereof, but in the second sub-clause.

it intended to cover only a part and not the entire holding; and that being so, what has been prohibited by the <ORG> is a transfer of a part and not of the whole of the holding. It was also argued that this <ORG> can only interpret and not legislate and the intention of the <ORG> has to be gathered from the language used.

17. Now, under Section 152, U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Zamindari Act) the interest of a <NAME> is transferable subject to certain conditions enumerated in Chapter VIII. Under Section 154, a <NAME> can make a gift of his <NAME>i tenure to any person provided such person shall not, as a result of the gift, become entitled to land which, together with land, if any, held by himself or together with his family, exceeds 12 acres. Under Section 153 of the Zamindari Act, the interest of a sirdar is not transferable except under certain circumstances, e. g., as provided by Sections 153 (2), 156, 157 and 161. His right to make a gift is a very limited one under Section 153 (2). Thus while the Zamindari Act confers the right of transfer to a <NAME> and a <NAME> in certain contingencies, such right of transfer has been further restricted by Section 5 (1) (c) of the Act, That this is so will be clearly apparent from the opening words "notwithstanding anything contained" in the Zamindari Act, as occurring in Clause (c). The distinction between Sub-clauses (i) and (ii) is with regard to user or transfer of a holding. The prohibition contained in Sub-clause (i) is with regard to the user, while the prohibition contained in Sub-clause (ii) is with regard to transfer. In respect of user, the ban extends to the entire as also part of the holding as the <ORG> has provided that no tenure-holder, except with the permission in writing of the Settlement Officer (Consolidation) previously obtained, shall "use his holding or any part thereof" except for certain specified purposes. And as against this, in respect of transfer, the <ORG> has provided that no tenure-holders, except with the permission in writing of the Settlement Officer (Consolidation), previously obtained, shall transfer by way of sale, gift or exchange "any part of his holding". In short, while the ban under Sub-clause (i) extends to the whole and the part, the ban under Sub-clause (ii) extends only to the part and not to the whole. There seems to be a purpose why these two different situations were visualized by the <ORG> and different kinds and extent of prohibition were imposed for these two situations.

18. The Statement of Objects and Reasons of the Act reads thus:--

"After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State. Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling block in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work. The advantages of having in compact blocks all the land farmed by one family need only be briefly mentioned. Boundary lines should be reduced in "number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields. Further, if land were all in one piece barriers, such as fences, hedges or ditches could be erected to obtain privacy and prevent trespassing, thieving and gleening. The control of irrigation and drainage water would be easier; control of pests, insects and disease would also be less difficult."

19. Referring to the object of the Act, in <CITATION> ., AIR 1959 SC 564, <ORG> made the following observations:--

"The object of the Act is to allot a compact area in lieu of scattered plots to tenure-holders so that large scale cultivation may be possible with all its attendant advantages. Thus by the reduction of boundary-lines saving of land takes place and the number of boundary disputes is reduced. There is saving of time in the management of fields inasmuch as the farmer is saved from travelling from field to field, which may be at considerable distances from each other. Proper barriers such as fences, hedges and ditches can be erected around a compact area to prevent trespassing and thieving. It would further be easier to control irrigation and drainage and disputes over water would be reduced considerably where compact areas are allotted to tenure-holders. Lastly, the control of pests, insects and plant-disease is made easier where farmers have compact areas under cultivation. These advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of food grains, which is the necessity of the day."

The preamble of the Act reads:--

"An Act to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.

Whereas it is expedient to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture."

20. <ORG> held in <CITATION> , AIR 1955 SC 604 that:--

"The statement of objects and reasons is certainly not admissible as an aid to the construction of a statute. But it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy."

See also <CITATION> , AIR 1952 SC 369 and <CITATION> , AIR 1960 SC 1080.

21. The preamble of a Statute is a key to the understanding of it. <NAME>, J. observed in <CITATION> , AIR 1963 All 29, that a preamble is a key to the interpretation of an Act and can be used to know the aims and objects of the legislation. The Statement of Objects and Reasons can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated an Act to be passed and the extent and urgency of the evil which it sought to remedy. A perusal of the Statement of Objects and Reasons and the preamble will clearly establish that the intention of the <ORG> was to provide for consolidation of agricultural holdings for the development of agriculture. If an agricultural holding is used for purposes not connected with agriculture, development will be retarded and similarly is a farmer is to travel from place to place to look to his scattered fields, again development will be retarded. The prohibition under Sub-clause (i) is for the purpose of promoting development of agriculture and the purpose of the prohibition under Sub-clause (ii) is to avoid fragmentation by sale, gift or exchange. It appears to me that it is because of this that while under Sub-clause (i), the prohibition applies to the entire as well as to the part of a holding; under sub Clause (ii) it extends to a part only, because if the whole holding is transferred, there can be no fragmentation and the only effect will be the substitution of the transferee in place of the transferor. Sub-clauses (i) and (ii) of Clause (c), therefore, were purposely enacted to subserve the purposes of the legislation and to avoid the existing evil.

22. I shall now refer to the second aspect of the matter. Section 3 (4-C) of the Act defines the word 'Holding' and says that it means "a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders." A holding, therefore, comprises either one parcel or several parcels of land, and (2) such parcel or parcels of land must be held under one tenure. That being so, a holding may consist of a single plot or several plots but all such plots must be of the same tenure. Section 3 (11) of the Act defines the term "Tenure-holder" and says that it "means a Bhumidhar or Sirdar and includes -- (a) an Asami, (b) a <ORG> lessee or <ORG> grantee, or (c) a co-operative farming society satisfying such conditions as may be prescribed." A tenure-holder will thus be either a Bhumidhar, or Sirdar, or Asami etc. etc. The term "Tenure" has not been defined by the Act. Section 3 (12) of the Act, however, says that words and expressions not defined in the Act but used or defined in the U.P. Zamindari Abolition and Land Reforms Act 1950, shall have the meaning assigned to them in the Act in which they are used or defined." The Zamindari Act also does not define the word 'tenure' but has used it at several places. Chapter VIII is headed "Tenure--Classes of Tenure". Section 129 of the Zamindari Act deals with "Classes of tenure". It says that "there shall be for the purposes of the Act, the following classes of tenure-holders; that is to say, (1) bhumidhar, (2) sirdar, and (3) asami." Section 130 deals with a Bhumidhar, Section 131 with a Sirdar, Section 133 with an Asami and Section 133-A with a <ORG> lessee'.

It is obvious, therefore, that while a tenure-holder is a Bhumidhar or Sirdar etc., a tenure is a <NAME> or <NAME> etc. etc. Now, under the definition of 'Holding' under the Act, a holding consists of a plot or plots under one tenure and not under several tenures. That being so, there might be several <NAME> of <NAME>, each Khata comprising a single or several plots, but all these <NAME> should be deemed to be under one tenure. If a farmer has <NAME> <NAME> as also <NAME> <NAME>, the <NAME> <NAME> will constitute one tenure, while the <NAME> <NAME> will constitute a second tenure and the two tenures will be separate and not one tenure. In the instant case, the petitioner's contention was that both the <NAME> <NAME> Nos. 12 and 15 were gifted to her by her husband <NAME>. The gift, therefore, must be taken to have been in respect of the entire one tenure and the fact that the <NAME> <NAME> were also alleged to have been gifted will not mean that a part of the tenure alone was transferred because the <NAME> and <NAME> tenures were different tenures and the whole <NAME> tenure was transferred, and not merely a part of it. The prohibition contained in Section 5 (1) (c) (ii) of the Act applies to the transfer of a part and not to the transfer of the whole and, therefore, the permission of the Settlement Officer (Consolidation) was not necessary.

23. It now remains to consider the two cases cited before us. The opposite party <NAME> placed reliance on 1962 RD (HC) 226 for the proposition that if the prohibition is for the transfer of a part, the law deems that it is for the transfer of the whole also. In that case, there was an agreement between <NAME> and <ORG> for the sale of some plots belonging to <ORG>. In pursuance of that agreement, the sale was made but without the permission of the Settlement Officer (Consolidation). The decision of the case depended upon the interpretation of the old section 16-A of the Act before it was substituted by the present Section 5. The old section 16-A in so far as it is relevant reads thus:--

"After the publication of the statement under Section 16 and until the issue of a notification under Section 52, a tenure-holder shall not, except with the permission in writing of the Settlement Officer (Consolidation) previously obtained, transfer by way of sale, gift or exchange any plot or share in any holding included in the scheme of consolidation notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950". The argument advanced in that case was that Section 16-A prohibited only sale, gift or exchange of one or more plots of a Khata while Kanchhida had transferred the entire Khata and, therefore, there was no necessity for a permission. Srivastava, J., dealing with this argument held as follows:--

"The argument that the section prohibits only the transfer of some of the plots in the Khata and not of the whole Khata is clearly untenable. What the section prohibits is a transfer by way of sale gift or exchange of any plot in the Khata of a holding. This means that one or more of the plots of a Khata cannot be transferred without prior permission. I do not find it possible to accept the contention that though one of more plots of a Khata cannot be transferred the whole Khata can be transferred without such permission."

24. I am of the view that <NAME> case, 1962 RD (HC) 226 involved the interpretation of the repealed Section 16-A which used somewhat different words, namely, "any plot or share in any holding". The decision in that case may not be very helpful when the words used in the old section may easily comprise the whole share. We are called upon to interpret a wholly different phraseology as used in section 5 and no useful purpose will be served by taking into consideration the decision in <NAME> case, 1962 RD (HC) 226. The utmost that can be said is that it laid down the broad proposition that where there is a prohibition on the transfer of a part, it may apply to the transfer of the whole. However, whether or not the broad proposition would actually apply will depend upon the language used in a given Statute. In section 5 (1) (c) (i) and (ii) the language used is different and the intention must be gathered from the language used. In that view of the matter, I think that effect must be given to the words used notwithstanding the broad proposition which may or may not be of universal application. I have observed earlier that the user of the different phraseology in the two sub-clauses subserves the purpose of the legislation.

On the other hand, the learned counsel for the petitioner placed reliance upon 1968 All LJ 223. In that case, one <ORG> was allotted to one <NAME> and he executed a sale deed in respect of the entire <ORG> to one <NAME>. Later, <NAME> executed another sale deed for the same property in favour of one <NAME>. <NAME> applied for mutation but this was dismissed by the Consolidation Officer, <NAME> appealed but the appeal was dismissed. He then filed a revision which was also dismissed by the Director of Consolidation. He then instituted a writ petition on the ground that since <NAME> had sold the entire <ORG> and not a part to him; therefore, the consolidation authorities had wrongly decided that the sale in his favour was void for want of previous permission. <NAME>, J. held that this contention was correct and no permission was necessary. Then <NAME> filed special appeal which was decided by <NAME>, C.J. and <NAME> <ORG> took into consideration the different phraseology used in the two sub-clauses and the purpose behind the legislation and held that Sub-clause (ii) does not prohibit sale of the entire holding. I am in respectful agreement with this decision.

25. The result is that I agree with the order proposed by my brothers <NAME> and <NAME>.


JUDGMENT <NAME>, J.

1. This is a suit by a mortgagor against his mortgagees to prevent them from exercising their power of sale. Although in the plaint several averments are made in respect of the sale intended to be held on May 8, 1941, the relief asked for is not in respect of that particular sale. The plaintiff contends that the power of sale contained in the mortgage deed is invalid and inoperative and it should be declared that the defendants are not entitled to exercise the same. These two. prayers are followed by a prayer for injunction. No other relief is sought in the suit.

2. The mortgage was executed by the plaintiff on April 18, 1940, and the due date was July 18, 1940. From the pleadings it is clear that the due date has expired and the mortgagor (plaintiff) has failed to pay the mortgage debt. There has been no offer to redeem the mortgage.

3. The first contention raised on behalf of the defendants is that the suit as framed is not maintainable. It was argued that a mortgagor must file a suit for redemption and offer to pay the mortgage debt after the due date has expired if he wants any relief against the mortgagees who are acting under the mortgage deed. The plaintiff relied on three cases, <CITATION> (1877) I.L.R. 2 Bom. 252, <CITATION> (1920) 23 Bom. L.R. 1241 and <CITATION> (1940) 43 Bom. L.R. 553. The Advocate General for the plaintiff strongly relied on the last case where it was observed that a mortgagor can ask for an injunction in the event of the mortgagee attempting to exercise his power of sale improperly or irregularly. In the first case the suit was filed for redemption and the Court held that even after such a suit was filed the mortgagee could exercise the power of sale contained in the mortgage deed and cannot be restrained from exercising his power of sale merely because of the redemption suit. <NAME>, in the course of his judgment, observed (p. 256):

The mortgagor is entitled to have the sale of the property suspended only if he can shew either that he has paid off the mortgage lien or that he has made a legal tender of the amount due which has been refused.

<CITATION> the due date had not arrived and the mortgagee had threatened to sell the property although the mortgage debt had not become due. That is clearly a different set of facts from what is found here. <CITATION> . in the course of his judgment expressly stated (p. 557):

No case was cited before me to show that if the right to redeem had not accrued to the mortgagor he could not bring in a suit for an injunction restraining a wrongful sale, but that his only remedy was either to pay or tender the moneys and allow the property to be sold, and then pursue his remedy in damages if any.

The facts there clearly show that the mortgage debt was alleged by the mortgagee to be due, while it was contended by the mortgagor that the event on which the due date was accelerated either had not happened or that the mortgagee had not exercised his option to call in his mortgage amount on the happening of such an event. It was therefore contended by the mortgagor that the mortgage debt had not become due.

4. The observations in each individual judgment have to be read in the light of facts found in the case, and under the circumstances it does not appear to me that any of the three cases relied upon by the plaintiff sustains the contention that after the mortgage debt has become due the mortgagor is entitled to file a suit to restrain the mortgagee from exercising the power of sale without offering to redeem and tendering the amount. I have already pointed out that in this case the plaintiff does not suggest that the mortgage debt has not fallen due. The plaint admits that it has fallen due.

5. The contract between the parties is found in the indenture of mortgage. By that document the plaintiff had stipulated that he would pay the mortgage amount on July 18, 1940, to the mortgagees. The present demand on the part of the plaintiff is to enforce his right under that contract although he has committed a breach of one of the most important terms of the same. The argument of the defendants is that as the plaintiff has committed a breach of the contract he has no right to come to <ORG> and seek to enforce it against the defendants. It is argued that relief by way of injunction is granted on the same principles on which the <ORG> will order specific performance, and in this case if the plaintiff had asked for specific performance of this contract the <ORG> would have refused it because the plaintiff himself had committed a breach thereof. The <ORG> should similarly refuse the relief by way of injunction. In my opinion there is considerable force in this contention. The relief by way of injunction is always discretionary and the <ORG> will be slow to grant such a relief to a party who admits that he has committed a breach of the contract and at the same time wants to prevent the opposite party from enforcing his rights under the contract. Moreover the relief by way of injunction should in this case be very well and properly accompanied by a prayer for redemption. If the plaintiff chooses to refrain from carrying out his obligations and prays only for an injunction, it is difficult for the <ORG> to exercise a discretion in his favour. To permit the plaintiff to do so would mean that the plaintiff can persist in his breach and prevent the defendants from enforcing their rights under the contract. Moreover in this case the express terms of the contract contained in the mortgage deed show that if the power of sale was exercised improperly or irregularly or that the same was unnecessary, the remedy of the plaintiff in respect of any breach of the proviso was to be in damages only. That is the usual clause in a mortgage deed and is inserted for the benefit of the mortgagor as well as the mortgagees. Without such a clause if an objection is taken to the sale at the time of the auction, the purchaser may be scared away and may not offer a proper price. In order, therefore, that the purchaser may give a proper value this clause is found in mortgage deeds. By that clause it is clear that the parties had stipulated that in the event of an improper, irregular or unnecessary exercise of the power of sale the remedy of the aggrieved party was to be only in damages. Having regard to this clause the <ORG> will be most reluctant to give an injunction to the mortgagor. In my opinion, the suit as framed is not maintainable and the mortgagor should pray for redemption before asking the <ORG> to intervene and grant an injunction restraining the defendants from exercising their power of sale. This leaves the question whether the power of sale is wholly illegal.

6. On the merits an interesting argument was advanced on behalf of the plaintiff. It was contended that by Section 69 of the Transfer of Property Act the legislature had provided that in certain cases only a mortgage deed might contain a power of sale. Relying on the words of Section 69 it was argued that the power of sale should be without any additions, limitations or ancillary rights. The power of, sale in this case is in the following terms:--

...And it is hereby agreed and declared that notwithstanding anything contained in the Trustees and Mortgagees Powers Acticle 1886, it shall be lawful for the mortgagees or any person acting on their behalf at any time or times hereafter as well before as after the due date without any further consent on the part of the mortgagor to sell or to concur in the sale of the mortgaged premises hereby mortgaged and granted or expressed so to be or any part or parts thereof without the intervention of the <ORG> and either together or in parcels or lots and either by public auction or private contract and either with or without any special conditions or stipulations relative to title or evidence of commencement of title or otherwise which may be deemed proper by the mortgagees with power to postpone such sale from time to time and to buy in the said hereditaments and premises or any part thereof at any sale by public auction or to rescind or vary any contract for the sale thereof and to resell the same from time to time being not answerable or responsible for any loss or diminution occasioned thereby and for the purposes aforesaid or any of them to make agreements execute assurances give effectual receipts or discharges for the purchase money and do all other acts and things for completing the sale which the person or persons exercising the power of sale shall think proper AND the aforesaid power shall be deemed to be a power to sell or in selling without intervention of the <ORG> within the meaning of section 69 of the Transfer of Property Act, 1882.

It was contended that this was not authorised by Section 69 of the Transfer of Property Act and therefore the power was invalid. It was argued that this power was one and indivisible and as it was bad the mortgagees had no right to sell the property without the intervention of <ORG>. In this connection it was pointed out that the draftsman of the indenture of mortgage had committed the error of borrowing the form from English forms and precedents. It was argued that the law in England was different and therefore this form could not be properly adopted for mortgages in India having regard to the provisions of the Transfer of Property Act .

7. In my opinion this contention of the plaintiff is unsound. The first statute enacted in England incorporating the rights of the mortgagees was 23 & 24 Vic. Clause 145 (Lord Cranworth's Act) of 1860. Even before that in Davidson's Conveyancing Precedents of 1858 (Vol. II, p. 760) a form of mortgage with a power of sale worded exactly as in this case is shown to be the usual form. The Act of 1860 recognised that this power was commonly inserted in mortgages. This is made clear by the preamble to that Act. By the Act it was presumed to exist. Next came the Conveyancing Act of 1881 (44 & 45 Vic. Clause 41). Section 19 of that Act recognised this as an implied power of sale in the mortgagee. At present the Law of Property Act of 1925 (15 Geo. V, Clause 20), Section 101 , governs the rights of the parties in England. By Section 101(1)(i) it is provided that such a power of sale is implied in favour of a mortgagee. The expression "power of sale" thus appears to be a well-known expression in conveyancing. In <ORG> printed in 1858 the marginal note against a clause worded as here is "power of sale." In India the same expression is known and has been understood in the same way so far back as 1875 in <CITATION> (1875) I.L.R. 2 Bom. 1.

8. On behalf of the plaintiff it was argued that this is an incorrect way of approaching the case. The English law should not be looked at and a reference to the precedents there is not relevant. The <ORG> has to consider only Section 69 of the Transfer of Property Act. I concede that in interpreting Section 69 English statutes cannot govern the plain meaning of the words used in it. But I am unable to find anything in Section 69 which in any way is in conflict with or different from the English Act . The words "power of sale" are not defined anywhere in the Act. If it is a technical expression it would not be improper for the <ORG> to find out its meaning as judicially interpreted. <CITATION> was decided before the Transfer of Property Act of 1882 was enacted and can therefore be safely relied upon to construe the words "power of sale" in connection with a mortgage. The words used in Section 69 are ". . . a mortgagee . . . . shall, subject to the provisions of this section, have power to sell" &c. and the insertion of a clause giving such a power when the property is situate in one of the Presidency towns or the towns mentioned in Sub-section (c) is valid. It may be noted that in Sub-section (c) the words used are "Where a 'power of sale' without the intervention of the <ORG> is expressly conferred on the mortgagee . . ." The words "power of sale." used in Sub-section (c) refer to a clause to be expressly included in the mortgage. They must be understood therefore to mean what is ordinarily known and understood in conveyancing by that expression.

9. The argument of the plaintiff based on the construction of the words used in this case is also unsound. A power of sale must include all steps which are necessary to be taken in that connection. In order to make the power bad words must be pointed out in the section which render the whole power invalid according to law. It should be remembered that as between adults the law permits the greatest freedom of contract unless it is expressly taken away. Therefore if the plaintiff contends that this particular clause restricts in any way the power of the parties to enter into a contract, the burden is on him to show that the words of the section prevent an agreement between the parties as embodied in the document. I am unable to find any words in Section 69 which prevent the parties from entering into the contract found in this mortgage deed. It was argued that under Section 69 a mortgagee had no power to postpone the sale. I am unable to accept that contention. A power to sell must necessarily include a power to postpone the sale. It is a power to sell either now or at a later date. I do not think that expression is against the words used in Section 69 . It was contended that the power to buy in, or rescind or vary any contract for sale was bad and against the words of Section 69 . This argument is based on a misapprehension. The words used are not "buy out" but "buy in." No mortgagee has a right to buy the mortgage premises without an express authority from the <ORG>. If he attempted to buy directly or indirectly, on proof that the transaction was of that nature, the <ORG>s have always held that the mortgage subsisted and the transaction of sale was a nullity. I do not think the expression "buy in" has ever been intended to give the mortgagee that right. It should be realised that if at an auction sale there are several intending purchasers and the highest bid is very inadequate, a way has to be found by which the property is not sold to the highest bidder and cause a tremendous loss both to the mortgagor and the mortgagee. The expression "buy in" is therefore used so that in effect the party at whose instance the auction is held takes the property out of the auction. The only way in which the auction can be closed is by such an offer being given and the property not being knocked down to an outsider. The expressions used after the words "buy in" make this position very clear. The mortgagee is given a right to buy in or to rescind i.e. to set aside the contract of buying or vary any contract for sale and to resell the same. Therefore when an auction sale is found not to result in realising the proper value, the mortgagee may either postpone the sale, or if he finds that he is unable to do so because the auction sale had started, he has to resort to the second way to prevent the property being knocked down at an undervalue and to resell the same. I do not think, on a true interpretation, the clause relating to the power of sale gives the mortgagees a right to buy the property for themselves. Unless that construction is put on this clause there is nothing to violate the words "power to sell" used in Section 69 . In my opinion, therefore, this clause does not violate Section 69 in any manner and the power is valid.

10. It was argued that if a portion of the power is bad the whole power is bad because it is one and indivisible. Having regard to the view which I have taken, I do not think it necessary to discuss this aspect of the case.

11. My findings on the issues are: No. 1 in the negative; No. 2: The power is valid; No. 3 in the affirmative and No. 4 in the negative. The suit is, therefore, dismissed with costs. The interim injunction granted on May 8, 1941, is dissolved. Costs to include costs reserved. The mortgage deed provides that if the mortgagees' rights have to be defended in any manner the mortgagees will be entitled to claim their costs when taxed as between attorney and client. Ordinarily I am reluctant to award costs taxed otherwise than between party and party, but in the present case the mortgagor himself has challenged the mortgagees' title and has attacked the right found in the contract. I, therefore, award the defendants costs against the plaintiff when taxed as between attorney and client.


ORDER

1. Heard learned counsel for the parties.

2. It is an unfortunate case where the police collected poor people and took them to the Police Station for doing some work. They were asked to work without labour charges. On demand they were beaten and it appears that one of them <NAME> succumbed to the injuries and the body has also been disposed of. Petition No. 2 <NAME>, as alleged, was also stripped of her clothes and was thrashed in the Police Station. The other Eight persons namely (1) <NAME> (2) <NAME> (3) <NAME> (4) <NAME> (5) <NAME> (6) <NAME> (7) Hukka and (8) <NAME> were also beaten up rather then they should have been paid for the work they did at the Police Station.

3. We are happy and we record our appreciation that Mr. <NAME>, Deputy Commissioner of Police in his Affidavit has frankly accepted the atrocity committed by the police officers and it also appears some action has been taken and Station House Officer has been arrested. The matter is being investigated for criminal prosecution. It is unfortunate that the police to whom the citizen can approach for protection and help acted in such a manner.

4. Under the above circumstances we direct that the family of <NAME> who is dead will be paid Rs. 50,000/- as compensation, which will be invested in some scheme under <ORG>, so that the destitute family may get some amount monthly and the money may also be kept secured. It is also directed that petitioner No. 2 <NAME> who was stripped of he clothes at the Police Station, shall be paid Rs. 500/- as compensation and the 8 other persons namely-(1) <NAME> (2) Ram Prasad (3) Jaipal (4) Mahavir (5) <NAME> (6) Munsjia (7) Hukka and (8) Pratap, who were taken in the Police Station without being paid for their work will be paid Rs. 25/- each. It is directed that after investigation and inquiry officers who are found guilty, the amount paid as compensation or part thereof may be recovered from these persons out of their salaries after giving them opportunity to show cause.

5. This Order will not prevent any lawful action for compensation. But in case some compensation is ordered by a competent court, this will be given credit to.

6. The Writ Petition are disposed of accordingly.


JUDGMENT

1. In this case at the conclusion of the evidence and the argument, I gave judgment upon the footing t<NAME>t the deceased <NAME>d, daring his lifetime, transferred certain s<NAME>res to the defendant, <NAME>. At the trial, it was a common assumption of both sides, t<NAME>t if the widow could show t<NAME>t the deceased <NAME>d executed in her favour a certain transfer deed, and <NAME>d made over the same to her she would be entitled to succeed. Mr. <NAME>, for the plaintiff, after my judgment <NAME>d been given, asked me to re-hear argument upon the case in view of the fast t<NAME>t subsequent consideration <NAME>d induced him to think t<NAME>t this assumption was wrong. Rather t<NAME>n <NAME>ve the rights of the parties determined according to any other principles t<NAME>n those of law, I assented to <NAME>ving the matter re-opened in argument before me. Now I am quite clear on the fasts of this case t<NAME>t the gift, which the deceased intended of these s<NAME>res, was intended by him to take effect by way of transfer, and t<NAME>t he did not intend a trust. If, upon the evidence, I thought t<NAME>t it was open to the widow to say t<NAME>t on this question her opportunity for adducing evidence <NAME>d not been in the circumstances complete, I should not disturb my previous intention, and I should give judgment in her favour. I am, however, satisfied, t<NAME>t in view of the evident given at the hearing, it is not now open to the widow to profess a desire to contend t<NAME>t the gift of s<NAME>res by her husband was not intended to take effect by way of transfer. As regards the s<NAME>res in question, the decease husband was the absolute registered owner if one may apply language which is not strictly applicable even in England except to land, one may say t<NAME>t <NAME> was the owner of the legal as well a, the equitable interest in the s<NAME>res. He executed the transfer deed, which is in evident, and as I <NAME>ve held, he gave possession of it to his Wife. she however did not till after his death, complete the trans-far deed , nor was it in his lifetime presented for registration with the Company. In my opinion the gift was not perfected. The donor must <NAME>ve, done everything which, awarding to the nature of the property comprised in the settlement was necessary to be done to transfer the property , <NAME> v. <NAME> (1) (1862) 4 De G F & j 261 : 31 L. J. Ch.798 : 8 jur.(N. S.) 806 : 7 L. T. 178 : 45 E. R.1185;135 R. R.135., Ric<NAME>rds v. <NAME> (2) (1871) 18 Eq. H 43 L. J. ch. 459 : 22 W. R. 584., The donce much in the case of s<NAME>res such as those with which I am concerned (the Articles of Association of the Company <NAME>d been put in evidence), <NAME>ve a Present, absolute and unconditional right to <NAME>ve the transfer registered: Societe Generate de Paris v. waller(3)(1888)11,App. Cas. 20 at p. 28 : 55 L. J. Q. B. 169 : 54 L.T. 389 : 34 W. R. 662.Nanney v. Morgan(4)(1888) 37,Ch. 346 : 57 L. J. ch. 311 : 58 L. T. 238 : 36 W.R. 677. <NAME> v. <ORG> (5)(1891) 2 Ch.599 : 60 L. J. Ch. 627 : 64 L. T. 238 : 36 W. R. 93, <NAME> v. <NAME> (6)(1902) 2 Ch. 522 : 71 L. J. Ch. 276 : 86 L. T. 385 : 50 W. K. 315 : 9 Manson 209 : 18 T. L. R. 253.

2. In these circumstances, I must, in this case, apply the principle that there is no equity to perfect an imperfect gift, and hat the gift, having been intended to' take effect by waj of transfer, the <ORG> will not hold the intended transfer to operate as a declaration of trust. The evidence with regard to the disposition of the dividend does not alter this position and is no stonger than it was in the case of <NAME> v. <NAME> (1) Two cases, <NAME> v. <NAME> (7) 5 B. 268 3 Ind. Dec, (n. s ) 178, <NAME> v. <NAME> (8) 17 B. 486 : 9 Ind. Dec. (n. s.) 316. Were cited to me from Bombay, but, in so far as they qualify or whittle down the principles which I have endeavoured to explain I am not prepared to follow them. The fact this that, unless those principles be adhered to, every imperfect transfer will have to be made effectual by being construed as a perfect trust

3.In these circumstance, the result is that the plaintiffs must succeed in the after the first day of the hearing must be pad by the plaintiff to the defendants As regards the costs of suit up to and including, the first day hearing, those must be paid by the defendant, <NAME>. I am not preP5red £ make other defendants pay any costs

4. As regards my first judgment, I have copy of it, which is unsigned. To make the mater quite clear, what I purpose to do is to make the shorthand notes of the first judgment a schedule to this judgment <NAME>, J

5. In these case, I quite agree with the proposition that the <NAME> should be treated with that degree of suspicion which is proper to which are made after a man's death against his estate, In the present case, I am not surprised that the parties have searched high and low for corroborative evidence on either side, but has having regard to the extremo unreliability of cortain witness I think the evidence, in the end is with narrow compass.

6. I do not think that the evidence of the plaintiff <NAME>, about what his father is said to have told him three years before his death, is worth anything at all. The statement that a dead man three year ago had said this or said that, is almost inevitable fn such a case I am not in the least prepared to rely upon evidence of <NAME> when he makes a statement of that sort, particularly as it not corroborated by the evidence of any her brother. whom it is to be presumed some knowledge of the father's intention would be communicated. As regards the statement that the transfer deed through not as filled up in the body of it not was taken it <NAME> some time in August, shortly before his death, to <ORG> to have the shares sold by means of one <NAME>, that is borne out by the evidence of this broker and I do not in the least feel satisfed that is anything except tale. Very much the same consideration applies to the witness <NAME>, a neighbour of the decased, the deceased, who, in my indgment, gave his evidence (8)17 B. 486 : 9 Ind. Dec. (n. s.) 316. deuce with some vagueness and did not in the box impress me as a man whose oath proved the things which he said. Further, I am of opinion that the whole story as to what happened at the opening of the iron safe after the death some time in September, is a story which comes to nothing in either direction. Even if it be true that this lady's brother, <NAME>, who seems not to be a very reputable person, immediately shouted that there was no such thing as shares the moment the shares were mentioned, and that immediately thereupon these some-what numerous parties assisting in this function got into a state of noise and quarrel, while the lady stood by the threshold, I am entirely enable to draw any inference useful for the decision of this case from those facts. Now, I think that the documentary evidence in this case is by far the most important, but I failed to find any importance in a minute examination of the time and manner in which the transfer form was, after the death, signed by <NAME> by the pen of <NAME> for the purpose of accepting the transfer,

7. The position shortly is this;---The one witness, apart from the lady's evidence, who says that <NAME> executed the document now before me that it was years ago in the condition as regards the body of it, that it is now in, is the broker <NAME>, He is corroborated by the evidence of <NAME> in this respect, as it would appear from <NAME>'s evidence, that <NAME>'s signature was on that document in August 1918. Now, it is quite true that <NAME> is a relation of this lady, but he is a share, broker and he is just the sort of person who might reasonably be called in for the purpose of assisting <NAME> to execute the transfer deed. There is no improbability, and merely by reason of the relationship there is all the more probability that he would be called in for that purpose. Now the position is this. The transfer deed has on it the date 29th November i916,and I know that the deceased made his Will within a couple of weeks or so after that, in December 1916 the same year. When I come to that fact I have before me the' high probability that <NAME> was minced to arrange his affairs for some reason or other towards the end of 1916. In the Will he expressly says that he has no cash or moveable estate for distribution, and I find from the evidence of the share certificate that these shares had been transferred to him as long ago as the with June 1907. He is very unlikely to have forgotten about this holding in <ORG> and his statement that he has no moveable estate for distribution is, I think pretty strong evidence, taking it with the evidence of <NAME>, as to the transfer deed, that <NAME> had disposed as he thought of these shares at that time Now, when he was disposing of those properties in this way, we know something about his state of mind, because ho says that the plaintiffs in this suit "<NAME> and <NAME> naturally bore a strong hateful feeling to my wife and quite disrespect full to me, especially <NAME>. Remembering that the evidence of the testator himself is by far the best class of evidence that can be appealed to by claimants against his estate, I think I have here ample evidence for this, that the test was minded to give these shares to his wife and was of opinion, as the recital in the Will shows, that he had effectively done be and that they no longer belonged to his estate. In these circumstances, although the date 28th November 1916 is in type and not in manuscript, I am satisfied, reading the circumstances together with the Will, that it was executed as on the date which it purports to bear.

8. It being, therefore, established that the testator was minded ii to give these shares to his wife and thought that he had effectively done so, it remains to consider the point which Mr. <NAME> very properly pressed. People often are minded, to make gifts and yet do not complete the gift. That is quite true, but I am satisfied not only that the transfer deed was signed and witnessed, but that it was given effect to by parting with it to the wife with the utontion that from that time she was to be the owner of the shares. In the first place, there is some presumption that if a man wants to make a gift he will do all that is necessary to effectuate his purpose. He is treating the matter in the Will as though the shares were not his, and, when I come to examine the evidence that the testator banded the paper over to his wife, I find the position to be this. The lady's evidence is confused and in some places unreliable, but it does seem fairly certain that both he and she had a private box of their own and they both had access from time to time to each others. The lady is an illiterate purda-nashin. If she were to be required to make her mark upon the transfer deed and to have the shares transferred into her own name with the result that dividend warrants would come addressed to her, it is very probable that that would produce a great deal of trouble and inconvenience both to the husband and to her every time that these matters had to happen. It is not an astonishing thing at all that, in these circumstances, the transfer deed should be made over to the wife, but that the transfer deed should not be presented for registration and a new share certificate taken out in the name of the purda-nashin lady. Every probability, it seems to me, is in the lady's favour. It is probable that the husband meaning to make a gift did make the gift; he thought he had made it and it is quite consistent that they should not do what would be very troublesome in its consequences, namely, get the shares put in the lady's name during her husband's lifetime. As regards the receipt of dividends, the lady says that her husband had, of course, to collect the dividends. Sometimes he made them over to her and sometimes it seems that he spent them, I do not know, whether on household expenses or upon his own; but the mere fact that he paid the dividends, as such, on any occasion to his wife, is corroboration of the gift, and there is no doubt, having regard to the relationship of the parties, that if he did not pay the dividends over as received to his wife he did so by her implied consent or at any rate as between her and him, upon the footing that it was with her permission. I think, under the circumstances, that the evidence proves to my satisfaction not only that the document was executed in November 1916, but that it was made over to the lady and that there is room for quite sensible reasons, why the transfer was not completed by the registration of the shares in the new name. The lady must, therefore, succeed in this suit. The suit will be dismissed with costs on scale Mo. 2


JUDGMENT <NAME>, Kt., J.

1. The preliminary question arising in this case is, whether there is an appeal from the decision of <ORG> under Clause 3 of Section 160 of the Bombay District Municipal Act (Bombay Act III of 1901).

2. That section provides a remedy for the determination of the amount of compensation, to which a person becomes entitled under Clause 3 of Section 92 of the Act, by reason of his land forming part of a public street and becoming vested in the Municipality in virtue of the last portion of the first clause of that section. Both the right to compensation and the remedy for the determination and apportionment of its amount are given by the Act itself; so the right must be asserted and the remedy pursued only in the manner and upon the conditions prescribed by the Act. This is on the well-known rule of law that, where a Statute creates a right not existing at common law and prescribes a particular remedy for its enforcement, then that remedy alone must be followed: per <NAME> in <ORG> v. <NAME> (1859) 6 C.B.N.S. 336.

3. The question then is, whether Section 160 of the Bombay District Municipal Act, which constitutes <ORG> the tribunal for the determination of the amount of compensation, gives a remedy by way of appeal from that <ORG>'s order made under Clause 3 of that section. If that section does not give the right, it is admitted that there is no other section in the Act which gives it. A right to appeal cannot be assumed " in every matter which comes under the consideration of a Judge ; such right must be given by Statute or by some authority equivalent to a Statute: " <NAME> v. <NAME> (1887) L.R. 141. A. 160, 165. In terms Section 160 does not provide an appeal. Nor can it be said that it is provided by necessary implication. Clause 1 of the section directs that the amount of compensation shall be determined in the first instance by a panchayet appointed by the parties. Clause 2 provides that if they fail to appoint, the District Judge shall make the appointment at the instance of either party. It is not, and can hardly be, contended that where a panchayet, appointed under either of the said clauses, has determined the amount of compensation, its award can be questioned by way of appeal to <ORG>. Clause 3 of the same section provides that if the panchayet appointed under either Clause (1) or Clause (2) fails to give a decision within the period fixed in the clause, <ORG> shall determine the amount on application by either party. It will thus be seen that the <ORG> in question comes in as a substitute for the panchayet where adjudication by the latter has failed. What applies to the latter in the matter of appeal must apply, therefore, to the former, on the principle of the legal maxim "nosctiur a sociis." So far the necessary implication in Section 160 is against a right of appeal.

4. Further, Clause 3 of Section 160 directs that <ORG> shall "follow as far as may be the procedure provided by the Land Acquisition Act " in determining the amount of compensation. That means that only those provisions of the latter Act apply to the proceedings before <ORG>, which regulate its procedure in land acquisition cases. The said provisions do not include, but stand apart from, the provision relating to an appeal against an award made by <ORG> under the Land Acquisition Act . The right to appeal from the award is specifically given by Section 54 of that Act. That section is, therefore, excluded from the purview of Section 160 of the Bombay District Municipal Act.

5. There are two provisoes to Clause 3 of this latter section. The first says that no application to the Collector for a reference to <ORG> of the question as to the amount of compensation, such as is required under the Land Acquisition Act to give jurisdiction to that <ORG> in land acquisition cases, shall be necessary where the same <ORG> has to determine the amount of compensation under the said Clause 3. By this proviso Section 18 of the Land Acquisition Act, which would have otherwise applied to the proceedings before <ORG> under that clause as part of the procedure to be followed, is made inapplicable to those proceedings. So, again, the second proviso to Clause 3 of Section 160 says that <ORG> "shall have full power to give and apportion the costs of all proceedings in any manner it thinks fit." But for this proviso, Section 27 of the Land Acquisition Act, which points out how <ORG> shall make an order as to costs in land acquisition cases, would have applied to the proceedings before <ORG> under Clause 3 of Section 160 of the Municipal Act as part of its procedure. So careful has the <ORG> been to limit the application of the provisions of the Land Acquisition Act to the proceedings in <ORG> under Clause 3 of Section 160 of the Municipal Act that the implication is distinctly against a right of appeal from any decision of that <ORG> made under that clause.

6. It was contended before us by the learned pleader for the appellant that such right existed under the Code of Civil Procedure because that Code gave an appeal against a decree of every <ORG>. But it is taking a long stride in logic to infer from that that there is an appeal from an order made by the District <ORG> under Clause 3 of the Bombay District Municipal Act. An order made under the said clause is not a decree because it is made, not under the ordinary civil jurisdiction, but under a special jurisdiction created by a special Act, and that Act does not say that such an order is a decree.

7. This conclusion is supported by the decision of <ORG> in <NAME> v. <NAME> (1887) L.R. 14 I. A. 160, 165, on the construction of a somewhat similar section ( Section 10 ) in Act XX of 1863, which relates to the management of religious endowments. That Act provides for the supplying of vacancies among the members of <ORG> by election ; where the election fails, it says " <ORG>, on the application of any person, may appoint a person to fill the vacancy." It was held that an order by <ORG> made under that provision was not appeasable, because there was nothing in the provisions which conferred a right of appeal. With reference to the argument that though the Act gave no such right, it must be found in the general law, i. e., the Code of Civil Procedure, their Lordships held that an order under Section 10 of Act XX of 1863 was not a decree within the meaning of the Code, (Act X of 1877 as modified by Act XII of 1879), because a decree was defined to mean " a formal expression of an adjudication upon any right, claim, or defence, set up in <ORG> where such adjudication decides the suit or the appeal." " In the opinion of their Lordships, there was no civil suit respecting the appointment" made by the <ORG> under Section 10 of Act XX of 1863. In the present Code (Act V of 1908) a decree is defined to mean an adjudication in a suit. A proceeding under Clause 3 of Section 160 of the Bombay District Municipal Act is initiated, not by suit, but by application, and a decision passed in it is at best an award on the analogy of the Land Acquisition Act , so far as the provisions of the latter apply to the former.

8. For these reasons this appeal must be dismissed with costs, on the ground that it does not lie.


PETITIONER: STATE OF MADRAS Vs. RESPONDENT: M/S. SWASTIK TOBACCO FACTORY, VEDARANYAM DATE OF JUDGMENT: 14/12/1965 BENCH: <NAME>, K. BENCH: <NAME>, K. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 1000 1966 SCR (3) 79 CITATOR INFO : RF 1977 SC 879 (27) R 1980 SC 169 (12) R 1980 SC1227 (6) RF 1987 SC1885 (8) ACT: Madras General Sales Tax (Turnover and Assessment) Rules 1939, r. 5 (1) (i) Excise duty paid on raw tobacco-Raw tobacco processed and sold as chewing tobacco-Excise duty whether to be deducted from turnover of chewing tobacco under r. 5(1)(i). HEADNOTE: The respondent factory used to purchase raw tobacco and after processing it, sell it as chewing tobacco. Excise duty was paid by the factory in respect of raw tobacco purchased by it. In sales tax proceedings the factory contended that the excise duty so paid to <ORG> must be deducted to arrive at the net turnover under r. 5(1)i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The assessing officer as well as the Appellate Assistant Commissioner rejected the contention but it was accepted by the <ORG>. The revision filed by the. <ORG> in <ORG> was dismissed, whereupon the <ORG> appealed to this Court by special leave. It was contended on behalf of the appellant that the raw tobacco was converted by a manufacturing process into chewing tobacco, a different commodity and that, therefore, under r. 5(1)(i) of the Rules, as excise duty was paid only in respect of raw tobacco and not chewing tobacco the said duty was not deductible from the turnover of the assesses. HELD : 'Me object of the concession in r. 5(1)(i) is presumably to avoid payment of tax on tax in respect of the same goods. This concession would have no relevance if the goods subjected to excise duty were different from the goods sold. Tobacco when converted by a process of manufacture into chewing tobacco becomes a different marketable product. Duty on raw tobacco cannot therefore be said to be paid in respect of the manufactured product. [82 B-D] The expression "in respect of the goods" in r. 5(1)(i) means only on the goods", and cannot take in the raw material out of which the goods were made. [83 E] <ORG> v. Court & Co. [1963] 2 All. E.R. 722 and <NAME> v. <ORG>, L.R. [1950] A.C. 508, considered. The excise duty paid by the respondent was only on the raw tobacco and not on the goods sold by it, and therefore, the said duty could not be deducted from its turnover under r. 5(1) (i). [83 E-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 90 andand 91 of 1965.

Appeals by special leave from the judgment and order dated September 4, 1963 of <ORG> in Tax Cases Nos. 120 and 121 of 1963.

<NAME> and <NAME>, for the appel- lant.

<NAME> and <NAME> for the respondent. The Judgment of the Court was delivered by <NAME>, J. These appeals, by special leave, raise the question of the true construction of the provisions of r. 5(1) (i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, hereinafter referred to as the Rules.

The facts are not in dispute and they may be briefly stated. The respondent, <ORG>, is a dealer in tobacco. It purchased raw tobacco; by processing it in a prescribed manner, converted it into chewing tobacco and sold it as such in small paper packets. The said process has been described by <ORG> of <ORG> in <CITATION> (1) thus :

"Taking, however, the cumulative effect of the various processes to which the assessee subjected the tobacco before he sold it is clear that what was eventually sold by the assessee was a manufactured product, manufactured from the tobacco that the assesses had purchased. Soaking in jaggery water is not the only process to be considered. The addition of flavouring essences and shredding of the tobacco should establish that what the assesses sold was a product substantially different from what he had purchased."

for the purpose of these appeals, it was not disputed that the respondent purchased raw tobacco, converted it by a manufacturing process into chewing tobacco and sold it in small paper packets. The respondent paid excise duty in respect of the raw tobacco purchased by it. For the assessment years 1955-56 and 1956-57, the Assistant-cum- Deputy Commercial Tax Officer assessed the respondent to sales tax on the turnover of Rs. 10,67,923-10-9 and Rs. 7,71,661-11-0 respectively. The respondent, claimed that the excise duty paid by it to the <ORG>' Government in respect of the raw tobacco should be deducted from the turnover ascertained by the said Officer. But his conten- tion was rejected. On appeal, the order of the said Officer was confirmed by the Appellate Assistant Commissioner of Commercial Taxes. On a further appeal to <ORG>, the assessee, in addition to the question of deduction, raised (1) (1961) 12 S.T.C. 126,132.

an additional ground that the entire turnover of the sales on chewing tobacco was not liable to be assessed. The <ORG> set aside the order of the Appellate Assistant Commissioner. The <ORG> carried the matter in two revisions to <ORG>. A Division Bench of the said <ORG> agreed with the view expressed by the <ORG> and dismissed the revisions. Hence the present appeals. Mr. <NAME>, learned counsel for the <ORG>, argued that the raw tobacco was converted by a manufacturing process into, chewing tobacco, a different commodity and that, therefore, under r. 5(1) of the Rules, as excise duty was paid only in respect of the raw tobacco and not chewing tobacco, the said duty was not deductible from the turnover of the assessee. He did not contest the correctness of the decision of the <ORG> on the question of the taxability of the chewing tobacco under S. 5(vii) of the Act. Mr. <NAME>, learned counsel for the respondent, contended that the said rule was couched in a comprehensive language so as to take in excise duty paid on raw tobacco converted by a manufacturing process into chewing tobacco. The relevant rule reads thus :

"Rule 5. (1) The tax or taxes under section 3 or 5 or 5A or the notification or notifications under section 6(1) shall be levied on the net turnover of the dealers. In determining the net turnover the amounts specified in the following clauses shall, subject to the condition specified therein, be deducted from the gross turnover of a dealer :

(i) the excise duty, if any, paid by the dealer to <ORG> in respect of the goods sold by him;

Both the advocates argued, on the basis of the factual position,. that packets of chewing tobacco were goods different from tobacco from which the said goods were manufactured. While the learned counsel for the <ORG> laid emphasis on the words "goods sold by him", the learned counsel for the respondent relied upon the expression "in respect of" preceding the said words. If, instead of the expression "in respect of', the word "on" were there, the intention of the rule would be manifest and the answer to the question raised would be obvious. The excise duty paid by the respondent was only on the raw tobacco and not on the goods' sold by it and, therefore, the said duty was not deductible thereunder. So far there is no dispute. But it was said that the expression "in respect of" made all the difference. The words "in respect of", it was said, meant "attributable" and, therefore, the argument proceeded, the excise duty paid on the tobacco, though it was not paid on the goods sold by the respondent, was attributable to the said goods sold. The object of the concession is presumably to avoid payment of tax on tax in respect of the same goods. If excise duty was paid by a dealer on certain goods, it would be deducted from the gross turnover of the dealer in regard to the said goods, as otherwise, in effect, sales-tax would have to be paid on the amount paid towards excise duty. This concession could have no relevance if the goods subjected to excise duty were different from the goods sold. Raw tobacco, when converted by a process of manufacture into chewing tobacco, be comes a different marketable product. There will be no comparison between the raw tobacco and the chewing tobacco in the matter of demand or even price. Duty on raw tobacco may have some effect on the cost of the manu- factured product, but it cannot possibly be said that the said duty is paid in respect of the manufactured product. Rule 5(1)(i) of the Rules, therefore, permits deduction from the gross turnover of the dealer only the excise duty paid by him in respect of the same goods sold by him. Learned counsel for the :respondent cited some English deci- sions in support of his contention that the expression "in respect of the goods" was very wide and that it took in the raw-material out of which the goods were made. <ORG> in <ORG> v. <ORG>), in the context of payment of estate duty, con- strued the words "in respect of" in S. 5(2) of the Finance Act, 1894 (57 & 58 Vict. c. 30) and observed that the phrase denoted some imprecise kind of nexus between the property and the estate duty. <ORG> in <NAME> v. <ORG> (2) in construing the provisions of S. 2 , sub-s. (3) of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), held that the expression "in respect of' must be read as equivalent to "attributable". <ORG> in <CITATION> (1) observed that the said words could mean more than "consisting of" or "namely". It is not necessary to refer to other decisions. It may be accepted that the said expression received a wide interpretation, (1)  2 All. E.R. 722, 732.

(3) [1962] 3 All. E.R. 294.

(2) L.R. [1950] A.C. 508.

having regard to the object of the provisions and the setting in which the said words appeared. On the other hand, Indian tax laws use the expression "in respect of" as synonymous with the expression "on" : see Art. 288 of the Constitution of India; s. 3 of the Indian Income-tax Act, 1922; ss. 3(2) and 3(5) , Second Proviso, of the Madras General Sales Tax Act, 1939; s. 3(1A) of the Central Excise and Salt Act , 1944; and ss. 9 of the Kerala Sales Tax Act. We should not be understood to have construed the said provisions, but only have referred to their to state the legislative practice. Consistent with the said practice, r. 5(1)(i) of the Rules uses the same expression. When the said rule says "excise duty paid in respect of the goods", the excise duty referred to is the excise duty paid under s. 3(1) , read with the Schedule, of the Central Excises and Salt Act , 1944 . Under the, said section, read with the Schedule, excise duty is levied on the goods described in the Schedule. Therefore, when r. 5(1)(i) of the Rules refers to the duty paid in respect of the goods to <ORG>, it necessarily refers to the duty paid on the goods mentioned in the Schedule. As the duty exempted from the gross turnover is the duty so paid under the Central Act , read with the Schedule, the expression "in respect of" in the context can only mean excise duty paid on goods. In our view, the expression "in respect of the goods" in r. 5(1)(i) of the Rules means only "on the goods". Even if the word "attributable" is substituted for the words "in respect of", the result win not be different, for the duty paid shall be attributable to the goods. If it was paid on the raw material it can be attributable only to the raw material and not to the goods. We, therefore, hold that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover under r. 5(1)(i) of the Rules.

We cannot, therefore, agree with the construction of r. 5(1)(i) of the Rules accepted by <ORG>. No other question was raised before us. In the result, we modify the order of <ORG> accordingly. In the circumstances, we direct the parties to bear their respective costs.

Order modified.