JUDGMENT <NAME>, J.

1. On the merits of this controversy their Lordships are not called upon to decide, for in their opinion the respondents are estopped from raising the contention they desire to advance by reason of the judgment that has already been given between themselves and the appellant upon the point.

2. The dispute arises under a will and four codicils made by one Dr. <NAME>, who died on the 8th July, 1909.

3. By his will the testator appointed the Administrator-General of Bengal as executor and trustee and bequeathed to him his real and personal estate upon trust for sale and investment, and directed, after payment of debts, funeral expenses, and legacies, that the residue should be held to apply the income as' therein provided, during the life of his wife. On the death of his wife, he directed payment of certain legacies and then created trusts of the income of the fund to endure during the life-time of-certain named persons. By paragraph 17, he directed that on the death of the survivor of these named persons and such survivor was Miss <NAME>, <NAME> a further trust should be imposed upon his trustees to sell and convert his real property, apparently forgetting that that had already been done. He also again provided for the investment of the proceeds of sale and deelared that the trustees should hold the same:

For the full sum of 30, 000 rupees if the said trust funds shall amount to so much or exceed that sum but not otherwise and if the said trust funds shall not amount for so much then to hold the whole thereof upon trust to pay the income there 0f quarterly to two of the deacons for the time being <ORG> to be by them applied in manner following namely as to a moiety thereof for the poor's Fund in connection with the said <ORG> for the sustenance and support of the poor belonging to the said <ORG> or the congregation usually worshipping in the said Baptist Chapel and as to the other moiety for the General Fund in connection with the said <ORG> for the following purposes namely the support of the Pastor for the time being the expenses of the religious services held in the said Chapel repairs to the Chapel Pastor's dwelling-house and out-offices connected therewith and also for beeping my grave in decent order which shall be a duty imperatively incumbent on the deacons for the time being of the said <ORG> to perform.

4. If the trust fund exceeded the sum of 38,000 rupees, and this in the event has happened, he declared that as to all the balance thereof the trustees were to hold the same on the trust declared in respect of the sum of 30,000 rupees.

5. By his first codicil (22nd May, 1901) the testator revoked a number of provisions in the will, gave new directions with regard to the payment of the income, and provided that if Miss <NAME> should survive her sister, Miss <NAME>, her annuity should on her death be paid to two deacons of <ORG> to be applied by them in the manner mentioned in paragraph 17 of his will and by Clause 20 of this codicil he gave the balance of the income in the same terms.

6. By his second codicil, dated the 2nd March, 1903. the testator imposed certain conditions upon the gift made in favour of <ORG>, and provided that if the conditions should be broken Then, and in that cage one-half of the interest, dividends. So, that I have set abide for the said <ORG> shall be made over and paid to the Pastor for the time being of <ORG> for the benefit of the said <ORG> generally and the other half thereof to the Reverend <NAME> <ORG> at present at No. 117, Dharmtalla Street (if then existing) or if not in exlstence to the Pastor of <ORG> for the benefit of the said <ORG> and of the poor of the <ORG>.

7. His third and fourth codicils are not material for the purpose of this appeal.

8. The testator's wife predeceased him, and died on the 25tb July, 1907.

9. <ORG> did not comply with the conditions set out in the codicil and on the 17th February, 1911, the Administrator-General of Bengal instituted a suit asking among other things what would be the destination of the funds in the event of the provisions in favour of <ORG> being forfeited and whether the gift over in the second codicil would take effect or whether there would be an intestacy. To this suit the present respondents <NAME> and <NAME> were parties as representing the next of kin of the testator and they contended in favour of the intestacy on the ground that the period in which the gift over might take effect would be beyond the period in which vesting must occur.

10. The case was heard on the 16th July, 1912, before Mr. Justice <NAME>. He decided that <ORG> had not conformed to the conditions, and he held that the gift over to the other charities was valid. He then dealt with the contention which he said was strenuously urged on behalf of the next of kin that the whole gift to <ORG> and other charities failed for the reasons already mentioned He carefully examined the authorities and held that the contention was unsound. He concluded this part of his judgment in these words;

The vesting in this case is immediate, but <ORG> is divested because certain conditions cannot) be fulfilled by them.

11. He then continued:

I also hold there is no intestacy as to the surplus income or any part of it during the life-time of <NAME>.

12. Finally he dealt with the question as to whether a gift of income, without more, was a gift of corpus, and he stated that that question did not then arise as Miss <NAME> was still alive, but he stated definitely that the question would arise upon her death. In the same way he dealt with the contention that <ORG> might finally comply with the conditions, and that also was left over. The decree that was drawn up contained an express declaration that the gift over in the 8th clause of the second codicil was valid, and concluded by a provision in these words:

And this Court doth not think fit at present to determine the destination of the income of the said <ORG> funds or of the corpus thereof or the rights of parties therein and thereto respectively after the death of the said <NAME> and doth defer the determination of the said questions until after the death of the said <NAME>.

and liberty to apply was reserved.

13. Miss <NAME> died on the 10th April, 1917, and on the 8th September, 1917, the Administrator-General of Bengal presented a petition for the further construction of the will and codicils.

14. Upon the hearing the respondents, representing the next of kin, contended that the reservation in the decree enabled them to re-raise all the questions that had formerly been discussed. They urged that the gift of the .surplus income during the life of Miss <NAME> must be treated is distinct from the gift after her death and that as to the former no question as to a perpetuity could possibly arise, and that such question was consequently one of the matters that was left over for subsequent decision.

15. The learned Judge held that this matter had already been definitely settled and in addition gave reasons why lie adhered to his former opinion. This was, in fact, superfluous. The question as to the perpetuity had been definitely and properly before him on the former hearing, and was, in fact, decided without any reservation, as is made plain by the terms of the judgment itself, which show that the determination of the dispute as to the perpetuity was the foundation of the whole judgment and that the questions left over were those to which attention has been directed and which themselves are abundant to explain the meaning of the passage in the decree on which reliance is placed. It is not, and indeed it cannot be, disputed that, if that be the case, the matter has been finally settled between the parties, for the mere fact chat the decision was given in an administration suit does not affect its finality : see <NAME> v. <NAME> (1882) 22 C.D. 182. <ORG>, however, took a different view, and regarding the question as still open decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by Section 11 of the Code of Civil Procedure. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties, and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judge's attention was called to the decision of this Board in <NAME> v. <NAME> (1883) L.R. 11 I.A. 37, 41 which clearly shows that the plea of res judicata still remains apart from the limited provisions of the Code, and it is that plea which the respondents have to moot in the present case. In the words of Sir <NAME> (at p. 41) The binding force of such, a judgment in such a case as the present depends not upon Section 13 Act X of 1877" (now replaced by Section 11 of the Code of Civil Procedure) "but upon general principles of law. If it were not binding there would be no end to litigation.

16. Their Lordships are, therefore, of opinion that the appellant in this case is right, and that this appeal must be allowed. They have accordingly humbly advised His Majesty to this effect and also that the appellant should receive his costs here and in <ORG> out of the estate; the Administrator-General and the fourth respondent also to have their costs in <ORG> out of the estate, and the order of the Judge in the Court of first instance as to costs to remain undisturbed.


PETITIONER: A.B.ABDULKADIR AND OTHERS Vs. RESPONDENT: THE STATE OF KERALA AND ANOTHER(AN DATE OF JUDGMENT: 24/01/1962 BENCH: <NAME>, K.N. BENCH: <NAME>, K.N. SINHA, <NAME> P.(CJ) <NAME>, P.B. <NAME>, M. <NAME>, J.C. CITATION: 1962 AIR 922 1962 SCR Supl. (2) 741 CITATOR INFO : D 1967 SC1512 (17,26,54,68) D 1969 SC1306 (9) RF 1970 SC1912 (4) RF 1975 SC 360 (36) RF 1976 SC 182 (2) RF 1991 SC 735 (8,20) ACT: Central Excise-Control of tobacco-System of auctions License for storage-Repeal of state law- <NAME> and Travancore enactments, if law corresponding to (Central Excises Act -"Excise duty", meaning of-<NAME> Tobacco Act, 1084 (<NAME> 7- of 1084. .)- Travancore Tobacco Regulation, 1087 (Travancore 1 of 1087M.E.) Finance Act ,1950 ,ss.11(1),13(2). HEADNOTE: ln 1909 the Ruler of the erstwhile State of <NAME> enacted the <NAME> Tobacco Act of 1084 (M.E.) with the object of controlling the cultivation, production, manufacture, storage and sale of tobacco. Rules were framed under the Act for regulating the cultivation, possession, transportation and sale of tobacco and a system of - licensing was introduced for that purpose. Licences for storage were to be annual and to be issued on payment of licence fee. The authorities administering the provisionals of the Act and the Rules framed thereunder were the (commissioner of Excise and his subordinates. The system in force for the collection of tobacco revenue was to auction what were called A class and class shops. A law similar to that prevailing in <NAME> was promulgated in 1911 by the Ruler of Travancore as the Travancore Tobacco Regulation of 1087 (M.E.). The two States merged themselves in 1919 as the State of Travancore <NAME> but the two Acts continued to remain in force in the respective territories. On April 1, 1950, after the Constitution of India had come into force and Travancore cochin had become a 742 Part B State thereunder by s.11 of the Finance Act , 1950, the central Excises and Salt Act ,194,was ex- tended to that State. Section 13(2) of the Finance Act, 1950,provided that "if immediately before the 1st day of April,.1950, there is in force in any State other than Jammu and Kashmir a law correspo- nding to,but other than, an Act referred to in sub s.(1) or (2) of s.11, such law is repealed with effect from the said date.... . . " After this provision in the Finance Act , 1950, the Rules which were in force on April 1, 1950, were changed in the <NAME> area by a notification dated August 3, 1950, and the system of auction sales of A Class and Class shops was done away with and instead graded licence fees were introduced for various classes of licensees. Similar change was made for the Travancore area by notification dated January 25, 1951. The appellants who were carrying on business in tobacco within the territories of Travancore and <NAME> challenged the legal its of the notifications of August 3, 1950,and January 25, 1951, on the ground that the <NAME> Tobacco Act and the Travancore Tobacco Regulation under - which the notifications were purported to be issued, were law corresponding to the Central Excises and Salt Act , 1944, and so they stood repealed from April 1, 1950, by virtue of the operation of ss. 11 and 13(2) of the Finance Act. It was contended for the State of Kerala that the main feature of the Central Excise and Salt Act , 1944, was the imposition of a duty of excise on goods produced or manufactured in ,India and that there was no provision for charging duty in the <NAME> Act or the similar Travancore Act and therefore all these provisions in the Rules for the control of tobacco from the time of cultivation to the time of the final stage of sale to the consumer, even though they-were similar to the Rules under the Central Act , would not make the <NAME> Act or the similar Travancore Act a law corresponding to the Central Act . ^ Held, that the rules framed under the <NAME> Tobacco Act of 1084(M.E.) and the Travancore Tobacco Regulation of 1087 (M E.) requiring licences to be taken out for storage and sale of tobacco and for payment of licence fee in respect thereof were law corresponding to the provisions of the Central Excises and Salt Act , 1944, and, hence, were superseded on April 1, 1950, by virtue of s. 1312 ) of the Finance Act , 1950. consequently, the new Rules framed in August 1950 and January 1951 for the respective areas of <NAME> and the respective areas of <NAME> and Travancore for the issue of license and payment of fee therefore for storage of tobacco, were invalid ab initio. Per <NAME>, <NAME>, '<NAME>,<NAME> and <NAME>, JJ.-(I) The <NAME> Tobacco Act, 1084 743 (M.E.), as well as the Travancore Tobacco Regulation, 1087(M.E.), were in substance law corresponding to the Central Excises and Salt Act , 1944, and therefore, stood-repealed on April 1, 1950. (2) The auction system which was in force under the <NAME> and Travancore Acts was only a method of realising duty through the grant of licences to those who made the highest bid at the auctions. The fact that this system was used instead of-the system of charging of duty as provided in s.3 of the Central Excise and Salt Act , 1944, would not make any difference to the nature of the impost; the income from auctions was in the nature of excise duty. Per <NAME>, .J.-An Excise duty is, according to the Indian statute, a duty on the manufacture or production of goods and the duty which was levied in the States of Travancore and <NAME> on the storage of tobacco cannot be regarded as a duty of excise. In re The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938,  F.C.R 18, <CITATION> ,  F.A.R. 90, <CITATION> , (1945)' L.R. 72 I.A. 91 and Chaturbhai, M. Petal v. <ORG>,  2 S.C.R. 362, considered. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals. Nos. 89, 90 and 126 to 128/61.

Appeals from the judgment and order dated November 8, 1957, of <ORG> in o. Ps. Nos. 70 and 71 of 1956(K) and 2, 6 and 7 of 1955 E.

<NAME>, Attorney-General of India and <NAME>, for the appellants in a. As, Nos. 89 and 90 of 61.

<NAME> and <NAME>, for the respondent in C. As. Nos. 89 and 90 of 61.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellants in C. As. Nos. 126 to 128 of 61.

<NAME> and <NAME>, for the respondents in a. As, Nos, 126 to 128 of 1961.

1962. <NAME>anuary ` 24. The <NAME>udgment of <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, <NAME>., Was delivered by <NAME>, <NAME>, <NAME>. C. Shah, <NAME>., delivered a separate judgement.

WANCHOO, J.-These five appeals on certificates-granted by <ORG> raise a common question of law and will be dealt with together. Two of them (appeals 89 and 90) are from what was formerly the Cochin area and the other three are from what was the Travancore area. They relate to a tax on tobacco in these areas. As the facts, laws and rules in the two areas are similar we propose to deal in detail with the appeals from the Cochin area.

In 1909, Act VII of 1084 was passed by the Maharaja of Cochin to consolidate and amend the law relating to tobacco and was called the Cochin Tobacco Act, VII of 1084 (hereinafter called the Cochin Act). Section 4 of the Cochin Act prohibited the possession for sale, transport, import or export, sale and cultivation of tobacco except as permitted under the Act or the rules framed thereunder. section 5 of the Act gave power to the <ORG> to make rules - from time to time consistent with the Act to permit. absolutely or subject to any conditions, and also to regulate the possession for sale, transport, import or export, sale and cultivation of tobacco as well as the form of duty leviable on the sale of tobacco by retail. The remaining provision of the Act deal with offences, prosecutions punishment, confiscation and other ancillary matters such as arrest and siezure, with which we are not concerned in the present appeals. Reference may however be made to s. 18 which provided that "no action shall lie against the sirkar or against any officer of <ORG> for damages in any civil court for any act bona fide done or ordered to be done in pursuance of this Act, or of any law for the time being in force relating to tobacco revenue. Rules were framed under the Cochin Act called the Tobacco Cultivation Rules, which, by the first rule provided that "the cultivation of tobacco plant is prohibited except under a licence and shall be restricted to such parts or localities of the <ORG>, as may, from time to time, be fixed by the <ORG>............ " Rule 3 provided for drying, curing, manufacturing and storing of the tobacco, cultivated in the <ORG>, to be done under the supervision of an officer of <ORG> in licensed manufacturing yards and storehouses. Rule 4 provided for licensed for manufacturing yards and store houses. Rule 5 laid down that the licences would be in force for one official year and were to be issued on payment of a fee of Rs. 50/- for each licence, Under r. 6, the tobacco crop could only be harvested after permission obtained from the Inspector of Excise and under r.7 the harvesting was to be done by the licensed cultivator under the general superintendence of the Sub-Inspector. Of the locality in which the area cultivated lay and the harvested corp was to be transported only under permits granted by him from such area to the manufacturing yard where alone manufacture was to be undertaken. Rule 8 provided for the maintenance of a stock book by a licensee of a storehouse or n manufacturing yard. Rule 13 provided that the licensed manufacturer and the storehouse keeper would sell or otherwise dispose of his stock only to licensed dealers and there was prohibition against the disposal or sale of tobacco to any person who had not the required license to possess the same. Rule 15 made it an office for any one to cultivate, dry, cure, manufacture, store, transport, sell or otherwise dispose of tobacco in contravention of the Rules.

In addition to these Rules, there were further Rules also framed under the Cochin Act with, respect to import of tobacco into the State, and all import was prohibited except under the provisions of the Diwan's notification describing the sale of tobacco shops and licences. Possession of tobacco for the purpose of sale was also prohibited except under the provisions for the sale of tobacco shops and licences. Export of tobacco was also prohibited except with the special sanction of the Commissioner of Excise.

It further appears that the system in force for the collection of tobacco revenue up to August 1950 was to auction what were called A class and B class shops and the last of such auction was held under the notification dated May 30, 1919. In addition there were a class shops, the licence for which was granted either on the recommendation or in consultation with class licensees at the discretion of the <ORG> Commissioner or any other officer authorised by him on payment of the prescribed fee. This system along with the Rules already referred to was in force on April 1, 1950.

On April 1, 1950, after the Constitution had come into force and Travancore-Cochin has become a Part State thereunder, the Finance Act , No. XXV of 1950, extended the Central Excises and Salt Act , No.1 of 1944 - (hereinafter called the Central Act ), to the Part State of Travancore Cochin by s. 11 thereof. Section 13 (2) of the Finance Act , further provided that "if immediately before the 1st day of April, 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than, an Act referred to in sub-s. (1) or (2) of s. 11 , such law is hereby repealed with effect from the said date.. " It seems that in consequence of this provision in the Finance Act , 1950, the rules which were in force on April l, 1950, were changed in the Cochin area by a notification dated August 3, 1950, and the system of auction sales of A clause and shops was done away with and instead graded licence fees were introduced for various classes of licensees, including class licensees. Similar change was made for the Travancore area by notification dated January 25, 1951. These Rules introduced by these two notifications also did away with the control of cultivation, drying, curing, manufacturing and wrare-housing which were in force under the earlier Rules, so that these new Rules were only concerned with licensing of A, and C class shops. A class licensees under the new Rules were called stockists, class licensees were wholesale sellers and a class licensees were retailers. The system for A class licensees was that they were to pay a minimum annual fee for a Maximum quantity of tobacco or tobacco goods possessed by them and additional fee for further additional quantity, Thus, for example, in the case of jaffra tobacco it was provided that maximum annual fee would be Rs.1,500/-for a minimum of 100 candies and further fee of Rs.1,000 for additional quantity of 100 candies or part there of.

The appellants of Cochin area were tobacco dealers and holders at the time they filed their petitions in 1956 of A class licences. The main contention raised on their behalf in their petitions was that the Cochin Act stood repealed by the Finance Act 1950, on the introduction of the Central Act in the part <ORG> of Travancore- Cochin from April 1, 1950 in consequence, the notification which was issued on August 3, 1950, or on January 25, 1951, framing new Rules for the issue of licences and prescribing rules therefor under the powers conferred under the Cochin Act or the similar Travancore Act were ab initio void, because the Acts under which the notifications were; purported to be issued stood repealed from April 1, 1950. In addition various other grounds were raised challenging the validity of the new Rules which, however, we do not think it necessary for the purposes of these appeals to set out here, The petitions were opposed on behalf of the <ORG> and it was contended that the Cochin Act or the similar Travancore Act did not stand repealed from April 1, 1950, In consequence it was urged that the <ORG> was competent to frame new Rules which it did under the Cochin Act or the similar Travancore Act. Further the case of the <ORG> was that the graded licence fee introduced after April 1, , was a tax which was sustainable under item 60 or 62 of List II of the Seventh Schedule to the constitution.

<ORG> dismissed the petitions holding that the laws under which the new Rules were framed were in force and were justifiable under item 62 of List II of the Seventh Schedule. Unfortunately, though the judgment of the High court mentions the contention of the appellants that on the extension of the Central Act with effect from April 1, 1950, by the Finance Act , 1950, the Cochin Act as well as the similar Travancore Act ceased to be operative from that date, there is no discussion in the judgment with regard to this contention, and <ORG> did not consider whether in view of s.13(2) of the Finance Act , 1950, the Cochin Act as well as the similar Travancore Act stood repealed from April 1, 1950. If the effect of s. 13(2) of the Finance Act, 1950, was to repeal the Cochin Act as well as the similar Travancore Act, from April 1, 1950, there will be no law in operation which would justify the framing of the new Rules either in August 1950 or`in January 1951 and it would then be unnecessary to consider whether a law contain in,as provisions similar to those contained in the notification would be within the competence of the State legislature under item 62 of` List ll of the Seventh Schedule. That question would only arise if the Cochin Act or the similar Travancore Act survived the repeal effected by s. 13(2) of the Finance Act.

We have therefore to see what the provisions of the Finance Act are in this Connection. As already indicated, B. 11(1) of the Finance Act extends the Central Act and the Rules and orders made thereunder which were in force immediately after the commencement of the Finance Act to all Part States, except the State of Jammu and Kashmir. Consequently, the Central Act as well as the Rules and orders made there under become applicable to the Part State of Travancore-Cochin from April l, 1950. Further s. 13(2) of the Finance Act specifically provides that from April 1, 1950, any law corresponding to the Central Act will be repealed from that date. The contention on behalf of the appellants is that the Cochin Act as well as the similar Travancore Act was a law corresponding to the Central Act and therefore stood repealed as from April 1, 1950, under B. 13(2) of the Act. and it is this contention that we have to examine.

It was pointed out by this Court in <CITATION> , etc. (1) that where the Act repealed provides substantially for all matters contained in the Act effecting the repeal there is correspondence between the two Acts and the earlier Act would thus stand repealed; it is not necessary that there should be complete identity between the repealing Act and the Act repealed in every respect, Therefore, when s. 13 (2) of the Finance Act provides that on the extension of the Central Act from April 1, 1950, to the Part State of Travancore Cochin, any law corresponding to the Central Act is repealed with effect from that date, all that we have to see whether the law repealed substantially provided for the same matters as the Central Act , even though it may not be identical in all respects.

Let us therefore turn to the Cochin Act and the rules framed thereunder to see if it substantially provides for the same matters with which the Central Act and the Rules and Orders made thereunder deal. The main contention on behalf of the respondent in this connection is that the Central Act is an Act imposing a duty of excise on tobacco under item 45 of List I of the Seventh Schedule to the Government of India Act, 1935 (now corresponding to item 84 of List I of the Seventh Schedule to . the constitution), and such duty of excise is a duty on goods manufactured or produced in India. Thus according to the respondent, the main feature of the Central Act is the imposition of a tax on goods produced or manufactured in India and unless the Cochin Act or the similar Travancore. Act also imposes a tax on goods produced or manufactured in what was formerly Cochin or Travancore State these would be no question of correspondence between the Central Act and the Cochin Act or the similar Travancore Act. Reference was also made to In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act. 1938 Central Provinces and Berar Act XIV of 1938) Province of Madras v Messrs. <NAME> and Son(2) and Governor- General in <ORG> v. Provinces of Madras (3), where the nature of a duty of excise was considered. In the first case it was held that the primary meaning of "excise duty" was of a tax on articles produced or manufactured in the taxing country (see p. 40). It was also observed in that case that it could not be denied that laws were to be found which impose a duty of excise at stages subsequent to the manufactures or production. In the second case it was held that duties of excise were duties levied on the manufacture or producer of the commodity taxed. In the third case, the Privy council approved of the view of <ORG> as to the nature of the duty of excise. It may therefore be accepted that a duty of excise is a tax on goods produced or manufactured in the taking country. It may also be accepted that generally speaking the tax is on the manufacturer or the producer,. though it cannot be denied that laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production. We cannot however forget that the Cochin Act or the similar Travancore Act was passed by State in which there were no such Constitutional provisions as are to be found in the Government of India Act and it legislative Lists and this aspect will have to be borne in mind when judging the question of correspondence between the Central Act and the Cochin Act or the similar Travancore Act.

Now the Central Act provides by s. 3 for the levy and collection of duties of excise on all excisable goods other than salt which are produced or manufactured in India and also a duty on salt manufactured in or imported by land into any part of India. Further s. 6 of the central Act gives power to the central Government to issue licences and prohibits any person from engaging in the wholesale purchase or also whether on his own account or as a broker or commission agent or the storage of any excisable goods except under the authority and in accordance with the terms and conditions of a licence granted under the Central Act . <CITATION> (1) where the various provisions of the Central Act (including s. 6 ) and the rules framed thereunder were attacked on the ground that they had nothing to do with the levy and collection of duties of excise, this court held that the various provisions of the Central Act and the Rules made thereunder were essentially Connected with levying and collection of excise duty and in its true nature and character the Central Act remained one under item 45 of List I and that the incidental trenching upon the provincial field would not affect its constitutionality. The nature of the Rules the considered will appear from the following observations at p. 371:

"It (the Central Act ) is a fiscal measure to levy and realise duty on tobacco. The method of realising duty must be left to the wisdom of the legislature taking each individual trade and its peculiarities and difficulties which arise in that matter. Various provisions of the Act and the Rules show that the authorities are on the track of the movement of tobacco from the time it is grown to the time it is manufactured and sold in the market and the various provisions of the Act and the Rules made thereunder have been considered necessary for effectuating the purpose of the Act."

It is true that the Central Act provides for the levy of excise duty under s. 3 but in order to carry out that purpose it has provided for licences under s. 6. The Rules also provide in Chap. III for levy and refund of duty, in Chap. V for manufactured goods other than salt, in Chap. VII for warehousing, in Chap. VIII for licensing. Thus in order to levy excise duty under the Central Act , there are provisions in the Rules which start in the case of tobacco from the stage of cultivation and continue right up to the time the finished product reaches the hand of the retailer and thus becomes a part of the commons stock for purposes of sale to the consumers. We have also seen that the Cochin Act similarly provides for control- on tobacco from the stage at which it is grows to the stage till`it reaches <ORG> licensees who sell it in retail to the consumers. The Cochin Rules may not be so detailed as the Rules under the Central Act but their main object and purpose is the same, namely, to keep a check on tobacco from the time it is grown to the time it reaches the a <ORG> licensee who eventually sells it to the consumer. Further if one looks at the Rules under the similar Travancore Act in vol. II of the Travancore Excise Manual which were in force on A April 1, 1950, in relation to tobacco it will be found that there are elaborate rules in Part III from pp. 257 to 325 dealing with all aspects of control relating to tobacco. Chap. IV deals with bonding and issue; Chap. V with licences for sales, Chap. VI with transport and possession. Further there are rules at p. 296 for cultivation, curing and warehousing. Then at p. 14 are rules for the manufacture of cigars, cheroots and snuff in bond. It will thus be clear r that the Cochin as well as the Travancore Rules provided for similar central of tobacco as under the Central Act and show that the authorities in Travancore and Cochin were also on the track of the movement of tobacco from the time it was grown and manufactured to the time it was sold in the market. It would therefore follow that the Cochin Act as well as the similar Travancore Act along with the Rules corresponded to the Central Act substantially and would thus be repealed by s. 13(2) of the Finance Act , 1950.

But it is urged on behalf of the <ORG> that there is no provision for charging duty in the Cochin Act or the similar Travancore Act and therefore all these provisions in the Rules for control from the time of cultivation to the time of the final stage of sale to the consumer, even though they are similar to the Rules under the Central Act , would not make the Cochin Act or the similar Travancore Act a corresponding Act to the Central Act . There is no doubt that there is no provision corresponding to s. 3 of the Central Act in the Cochin Act or in the similar Travancore Act. Under the Cochin Act the tax was levied by virtue of the power conferred on the <NAME> under s. 5 to make rules for the purpose. Under the similar Travancore Act, the provision is contained in s. 31 which provides that the <NAME> may with the sanction of the ruler make rules permitting absolutely or subject to the payment of any duty or fee or to any other conditions, and regulating within the whole or any specified part of Travancore, the cultivation, manufacture, possession, transport, import and sale of tobacco. So in both the former <ORG>s, the Act did not contain a charging section and the duty was levied by the Rules framed by the <NAME> under the powers conferred on him by the Act. In essence, therefore, the provision for charging the tax was made in the Rules. Further it is true that the method by which the tobacco revenue was realised was through auction sales of the right to possess and sell tobacco. But we must not forget that the Cochin Act as well as the similar Travancore Act was passed by a Ruler who was not trammelled by a constitution like the Government of India Act, 1935, and its Legislative Lists. The method evolved for realising tobacco revenue was to auction the right to poses and sell tobacco and the amounts received at such auctions would cover what would be duty under s. 3 of the Central Act and licence fee under s. 6 thereof. It is urged however that this does not amount to duty on goods produced, nor is the duty in such a case paid by the manufacturer or producer of the goods. We have already indicated that the essence of the duty of excise as held by <ORG> and <ORG> is that it is a duty on the goods manufactured or produced in the taxing country. Further as generally the duty is on the goods produced or manufactured it is paid by the producer or manufacturer, though as in the case of all indirect taxes it is passed on eventually to the consumer in the shape of being included in the price and is thus really borne by the consumer. Further the cases on which reliance bas been placed on behalf of the <ORG> also show that laws are to be found which impose duty of excise at stages subsequent to manufacture or production. As a matter of fact, even in British India before 1935 there used to be public auctions of the right to possess and sell excisable goods like country liquor, ganja and bhang aid the amount realised was excise revenue. It is also obvious that this system of auction is not a system of levying sales tax because it has nothing to do with the levy on each sale, which is the essence of a sales tax. It seems that in the former <ORG>s of Travancore and Cochin, auction system continued right up to the time the constitution came into force and even for sometime thereafter. It seems under the circumstances that the auction system which was in force was only a method of realising duty through the grant of licences to those who made the highest bid at the auctions. The fact therefore that this system was used instead of the system of charging of duty as provided in s. 3 of the Central Act would not in our opinion make any difference to the nature of the impost which was in force on the relevant date, namely, April 1, 1950. It was however urged that under this system even tobacco which was not produced or manufactured in the <ORG> but was imported from outside was included for the purpose of licences granted under it. That is undoubtedly so. But from the Rules which were in force regarding cultivation, curing, manufacturing and so on of tobacco within the <ORG> it would not be unreasonable to infer that the substantial part of the income from auctions was still in the nature of excise duty. Even in the case of imported tobacco, only with respect to that part of it which was eventually sold to the consumer as it was imported without any processing or treatment in the <ORG>, it can be said that the impost which fell on it was not in the nature of excise duty. However, there is no way of differentiating this part of the revenue from the rest and considering the elaborate provisions as to the control of tobacco trade from the grower right up to the time that the goods were sold to the public in retail sale it would r in our opinion be not unreasonable to hold that the Cochin Act as well as the Travancore Act was in substance an Act corresponding to the Central Act . Therefore when the Central Act was extended to the Part <ORG> of Travancore-Cochin by s. 11 (1) of the Finance Act and the Finance Act specifically provided by s. 13 (2) for the repeal of corresponding law, the result was that the Cochin Act as well as the similar Travancore Act stood repealed. There would be no power in the <ORG> Government thereafter to frame new Rules either in August 1950 or in January 1951 for there would be no law to support the new Rules and without such law the new Rules could not impose a tax as that would clearly offend Art. 265 of the Constitution. Further as soon as the Cochin Act as well as the similar Travancore Act stood repealed on April 1, 1950, by virtue of a 13(2) of the Finance Act there could be no question of their being sustained under item 62 of List II of the Seventh Schedule for that would only arise if these were not repealed as corresponding law by s.13(2).

Turning now to the three Travancore appeals it is enough to pay that they stand on the same footing as the two <NAME> appeals. If anything the Travancore Act as well as the Travancore Rules which were in force on April 1, 1950 are more elaborate than the <NAME> Act and the <NAME> Rules. Further the Travancore Act by s. 31 actually refers to manufacture also. The <NAME> Act did not refer to manufacture in the Act itself though there was provision for manufacture in the Rules framed under the Act. What applies therefore to the <NAME> Act and the Rules framed thereunder applies in force to the Travancore Act and the Rules framed thereunder and there is no doubt that the Travancore Act and the Rules framed thereunder were also a law corresponding to the Central Act and the Rules framed thereunder. The Travancore Act therefore also stood repealed from April 1, 1950. There would thus be no law to support the Rules framed by the State Government in January 1951 and, therefore the Rules must fall.

It appears that these new Rules have been abrogated as from January 1958. So it Was urged on behalf of the State that this Court should not grant a mere declaration as to the invalidity of the Rules when they are no longer in existence. This argument in our opinion has no force because we must look to the situation as it was when the petitions were presented. The Cochin petitions were presented in 1956 and the Travancore petitions were presented in 1955 and at that time the Rules were in force and they continued in force till December 1957. Therefore the petitioners would be entitled to a declaration that the Rules were invalid because at any rate that would give them relief so far as the period after their petitions is concerned while the Rules remained in force.

We therefore allow the appeals and set aside the order of <ORG>. The petitions are allowed and it is hereby declared that the new Rules purporting to be framed either under the cochin Act or under the Travancore Act in August 1960 and thereafter in January 1951 were invalid ab initio and have no force and effect. The appellants will get their costs from the <ORG>-one set of hearing costs.

<NAME>, J.-In this group of five appeals the principal question which falls to be determined is whether within the meaning of a 1:3(2) of the Finance Act , 1950 (which by s. 11 thereof extended the Central Excise & Salt Act , I of 1944, to the Part b <ORG>s), there was, immediately before the 1st of April 1950, in force in Part <ORG> of Travancore-Cochin, a law Corresponding to the Central Excise & Salt Act , 1944 It is common ground that if there was such a law in force, by virtue of s.13(2) of the Finance Act of 1950, that law stood repealed,  of 1961 were carrying of the former state of Cochin. Appellants in Civil Appeals 126 to 128 of 1961 were residents of and carried on business in tobacco with in territory of the former <ORG> of Travancore. On July 1, 1949 the <ORG>s of Travancore and Cochin from themselves into a Union under a common administration, but by the virtue of Travancore Cochin Administration Law ,6 of 1125 (M.E.), the Acts which were previously in force. In the Territory of the former <ORG> of Travancore , there was in force the Travancore Tobacco Regulation I of Travancore in 1911. By s. 3 of the Act,"Tobacco" was define as including "snuff, cigars cigarettes, beedies, tobacco powder and other preparations or admixtures of tobacco" Section 4 of the Act imposed excepts as permitted by the Act or by any other enactment relating to tobacco for the time being in force by the Rules published under the Act or any other such enactment prohibitions against cultivation, manufacture possessions transport, importation exportation or sale of tobacco. By Chapter III of the Act power was conferred upon the officers of <ORG> to search house suspected to contain tobacco and provision was made for incidental matters. Chapter IV dealt with offences and punishments and by s. 31 the Diwan of the <ORG> was authorised, with the sanction of the Ruler, from time to time, by Notification in Gazette to make rules consistent with the Act amongst other subject permitting absolutely or subject to the payment of any duty or fee or to any other conditions and regulating within the whole or to any other conditions and regulating within the whole or any specified part of the <ORG> of Travancore, cultivation manufacture possession transportation import and sale of tobacco; authorising the establishment of warehouses or bankshalls for storing tobacco legally cultivated or imported into the territory fixing the mode, time and place of levy T of duty, regulating the special custody of tobacco warehoused and the levy of fees for warehousing and transport, and generally to carry out the provisions of the Act. Rules were framed in 1913 in exercise of the powers under s. 31 of the Tobacco Act whereby restrictions were imposed upon the import and export of tobacco and provision was made for bonding tobacco in warehouses and for the issue of licences for bonding tobacco. Provision was also made for licensing retail sale for tobacco and for transport and possession thereof. Certain other rules regulating cultivation, curing and warehousing tobacco and for the issue of licences for those purposes were promulgated in 1937. Rules were also framed regulating the manufacture of cigars, cigarettes and cheroots in bonds under licences. It is unnecessary to set out these rules in detail, it may suffice to observe that cultivation, curing, manufacture, possession, transport, importation and exportation and sale of tobacco was controlled by a system of licensing. Certain licences were issued free of charge and in respect of certain other licences, especially storage and sale, fee had to be paid to the <ORG>.

Similarly, in the State of Cochin there was enacted by the Ruler of Cochin the Cochin Tobacco Act of 1084 (M.E.) on May 3, 1909. By s. 3(d) of that Act, tobacco was defined as inclusive of "snuff, cigars and preparations of which tobacco forms a part " By s. 4 , except as permitted by the Act or by the Rules made thereunder, possession for the purposes of sale, transport, import, export, sale and cultivation of tobacco were prohibited. By a 5, <ORG> of the State was authorised from time to time after previous publication, to make rules consistent with the Act to permit abso.

lutely or subject to any Conditions regulating the possession, transportation, importation or exportation and sale and cultivation of tobacco. Contravention of the Act and the Rules or orders made under the Ace were penalised by s. 6 . Rules were framed in 1923 under the Cochin Tobacco Act providing for a system of licensing for cultivation, manufacture and storage of tobacco and for incidental matters. Control was maintained over harvesting, weighment, storage, stock taking and transport of tobacco, and also on the export and import of tobacco. The authorities administering the provisions of the Tobacco Act and the Rules framed thereunder were the Commissioner of Excise and officers subordinate to him in <ORG>. Licences for storage were to be annual licences and to be issued on payment of licence fee. Under the Cochin Act and the Rules framed thereunder control was maintained on tobacco at all the stages of its production, manufacture and disposal.

From a resume', of the provisions of these two Acts and rules and notifications issued thereunder, it is manifest that on the production, manufacture storage and sale of tobacco control was imposed and the administration of this control was left in the hands of the Excise Departments of the two States. As stated hereinbefore, by virtue of Act VI of 1125 (M.E.), the two Acts in operation within the territories of the two States were continued even after the Union of Travancore and Cochin as formed, and by Art. 372 of the constitution the provisions of the two Acts remained in operation in the respective area of the former States even after the Part`B State of Travancore-Cochin came into being on January 26, 1950. By s.11 of Finance Act 25 of 1950 certain Acts including the Central Excises & Salt Act , 1 of 1944, and all Rules and orders made thereunder in force from time to time before the commencement of the  Finance Act were extended with effect from April 1, 1950, to the part B States (except the State of Jammu & Kashmir), It was provided by s. 13(2) "that if immediately before the 1st of April, 1950, there was in force in any State other than Jammu & Kashmir a law corresponding to but other than the Act referred to in sub-s. (1) s. 11 such law" shall stand repealed with effect from the said date. Presumably, on account of the application of the Central Excises & Salt Act , I of 1944, by s. 11 of the Finance Act, 1950, the Part B State of Travancore-Cochin published fresh sets of Tobacco Rules. These Rules were issued on January 25, 1951, in purported exercise of the powers conferred by the Travancore Regulation I of 1087 (M.E.) and the Cochin Tobacco Act of 1084 (M.E.). Rule 14 (which is common to both the sets of Rules) provides that "the vend of tobacco of all kinds is prohibited throughout the state, except under a licence". Rule 15 provides that the "licence for the vend of tobacco shall be of the following description:-

(i) Stockist or 'A' Class licence;

(ii) Wholesale or 'B' Class licence ; and

(iii)Retail or 'C' Class licence." Rule 16(i) and (ii) provides:

"(i) Holders of Stockist or 'A' Class licences shall be entitled to purchase tobacco from any dealer within or without the <ORG> without any quantitative restriction. This class of licensees shall sell only to other 'A' Class licensees or to 'B' Class licence,

(ii) The annual fees for these licences shall be as follows:-

(Then follows a table which sets out minimum fee prescribed for varieties of tobacco stocked upto the maximum prescribed quantity and the additional fee payable for stocking additional quantities.)"

The appellants in all these appeals were 'A' Class stockists and were called upon to pay licence fee prescribed by these Rules. They claimed that they were not liable to pay licence fee under the Rules framed in 1951 because there was absolute delegation of legislative power by the Rules, that the levy infringed their fundamental rights under Arts. 14 and 19(1)(g) of the Constitution, that the duty levied was in any event an excise duty, and because the fee represented a tax on trade, calling or employment and on that account was subject to the constitutional restriction imposed by Art. 276 (2) of the Constitution. They also contended that the Tobacco Act s of the Travancore State and the Cochin State, which had been kept alive by Act 6 of 1125 (M.E.) and by Art. 372 of the Constitution were superseded by the application of the Central Excises and Salt Act , 1944, by s. 11 of the Finance Act, 1950.

<ORG> in the petitions for writs of mandamus and other writs negatived the contentions raised by the appellants that the Acts and the Rules amounted absolute delegation of legislative power or that the fundamental rights under Arts. 14 and 19(1)(g) and the restrictions imposed by Art. 276(2) of the Constitution were infringed thereby. <ORG> also held that the duty levied was not an excise duty and presumably on that account declined to consider the question whether the Tobacco Act s of the States of Travancore and Cochin had been superseded either wholly of partially by the application of the Central Excises and Salt Act of 1944.

The Travancore and the Cochin Acts do not directly levy any duty on production or manufacture of tobacco. Restrictions, it is true, are imposed the growing, curing, manufacture, storage, import and export by requiring that licences shall be obtained for those purposes and prescribing penalties for violating the provisions of the Acts and the Rules. It also appears that the trade in tobacco was regulated before the formation of the B State of Travancore-Cochin, by holding auctions for the rights to sell tobacco. These auctions were held by Excise Commissioners and the highest bidder in the auction got the right to deal in tobacco, and the two Acts were enacted for regulating and controlling the sale of tobacco, but the State did not levy any duty on the manufacture or production of tobacco. The licence fee for the issue of a licence for growing, curing, manufacturing, exporting, importing or storing is not in itself an excise duty on the manufacture or production.

<ORG> In the matter of the Central Provinces and Berar Sales of Motor Spirit and lubricants Taxation Act , 1938 observed:

....... at the date of the Constitution Act (Government of India Act 1935) though it seems that the word 'excise' was not infrequently for the administration of a particular indirect tax (as salt excise or opium excise), the only kind of excise duties which were known in India by that name were duties collected from manufacturers or producers, and usually payable on the issue of the excisable articles from the place of manufacture or production. This also may not be conclusive in itself, but it seems a not unreasonable inference that <ORG> intended the expression 'duties of excise' in the Constitution Act to be understood in the sense in which upto that time it had always in fact been used in India, where indeed excise duties of any other kind were unknown. Nor indeed are excise duties properly so-called often to be found at the present day which are not collected at the stage of production or manufacture, whatever may have been the case in <NAME>'s time and whatever may have been the reasons for <NAME>'s definition of 'Excise' in the first edition of his Dictionary (1755)......"(Per <NAME>) This view was approved by <ORG> in The Governor-General in Council v.

The Province of Madras An excise duty is according to the Indian Statute, a duty on the manufacture or production of goods and the duty which was levied in the States of Travancore and Cochin on the storage of tobacco cannot be regarded as a duty of excise. But that conclusion is not decisive of the problem under consideration. The question has still to be considered whether the Travancore and Cochin Acts and the Rules framed thereunder were law "corresponding" to the Central Excises and Salt Act , 1944, extended under the Finance Act , 1950. The expression "corresponding" does not postulate identity of the State Law and the statute extended by s. 11 of the Finance Act: if there was in force at the material time law in the Part B State dealing with a particular subject matter and the law extended by s. 11 of the Finance Act, 1950, dealt with the same subject matter and the two laws though not identical still were such that if they stood together there would have been legislative duplication or overlapping, the law in force in Part B State would be regarded as corresponding to the law extended by the Indian Finance Act and hence repealed by the operation of s. 13(2).

Let us examine the scheme of the Central Excises and Salt Act of 1944 for the purpose of ascertaining whether the Travancore and the Cochin Tobacco Acts and Rules frame thereunder are law corresponding to the Central Excises and Salt Act , 1944, wholly or partially. The Central Excises and Salt Act , 1944, was enacted to consolidate and amend the law relating to Central duties of excise on goods manufactured or produced in certain parts of India and to salt. The expression "excisable goods" is defined in s. 2(d) as meaning "goods specified in the First Schedule as being subject to a duty of excise and includes salt". By s. 2(f) the expression "manufacture" is defined as inclusive of "any process incidental or ancillary to the completion of a manufactured product, and

(i) in relation to tobacco includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco, or snuff x x x". By s. 3 it is provided that 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 x x x and at the rates set forth in the First Schedule. By s. 6 , certain incidental operations are made subject to licence and it is provided: The Central Government may, by notification in Official Gazette, provide that, from such date as may be specified in the notification, no person shall, except under the authority and in accordance with the terms and conditions of a licence granted under this Act, engage in (a) the production or manufacture of any specified goods included in the First schedule or of saltpetre or of any specified component parts or ingredients of such goods or of specified containers of any specified excisable goods, or (b) the wholesale purchase or sale (whether on his own account or as a broker or commission agent or the storage of any excisable goods specified in this behalf in Part A of the Second Schedule". By virtue of these provisions power is conferred upon <ORG> to impose restrictions upon the rights to produce, manufacture and to engage in any process of production or manufacture of the excisable goods or in the wholesale purchase or sale of excisable goods this power is conferred indisputably as ancillary to enforcing the law enacted for the levy and collection of excise duty. By s. 9 contraventions of the provisions of the Act and notifications thereunder are penalised. Power to forfeit goods is conferred by s. 10 . By Chapter III, power to arrest and to summon persons to give evidence or produce documents in inquiries under the Act to search and the procedure to be followed by officers in-charge of police-stations, inquiries to be made by <ORG> against arrested persons forwarded to them are made. Chapter VI deals with adjudication of confiscations and penalties, and Chapter VII enacts certain supplementary provisions. The Schedule to this Act sets out the descriptions of various goods and the rates of duty chargeable in respect thereof.

The primary purpose of the Act is to levy and collect excise duty in respect of goods specified in the First Schedule and with that object in view, diverse provisions are enacted. Tobacco is under the Act an excisable commodity, and duty at rates specified in the Schedule is leviable in respect of different forms of tobacco. By s. 6(b) wholesale purchase or sale, or storage of excisable articles is prohibited.

By Rule 7 of the Central Excise Rules, 1944, duty is made payable by every person, who produces, cures, manufactures or who stores in any warehouse any excisable goods. Rule 174 which occurs in Chapter VII deals with licensing. It provides, in so far as it is material, that.

"Every manufacture, trader or person hereinafter mentioned, shall be required to take out a licence and shall not conduct his business in regard to such goods otherwise than by the authority, and subject to the terms and conditions of a licence granted by a duly authorised officer in the proper From:-

(1) Matches x x x (2) Unmanufactured products. -

Curers, brokers, <ORG> agents and wholesale dealers who purchase such products from cures, all brokers, commission agents and wholesale dealers doing business in unmanufactured tobacco; all holders of private bonded store-rooms or warehouses;

(3) Other excisable goods except salt-

(a) Manufacturers; and

(b) x x x Rule 175 deals with the procedure for obtaining a licence. By the 1st clause it provides that every person desiring to engage in operations requiring the possession of a licence aforesaid shall apply in writing every year for a licence or renewal thereof to the licensing authority who shall be such officer as <ORG> may authorise in this behalf. Rule 176 prescribes Forms application for licences and cl. (2) provides that every such application for licence shall, where a fee is prescribed in the subjoined Table, be accompanied by a Central Excise Revenue Stamp showing payment of such fee under item No. 2 in the Table "a wholesale dealer in unmanufactured tobacco who purchases for the purpose of trade or manufacture" the to pay graded fee set out in the second and the third columns. Item 6 deals with the duty payable by the holder of a private bonded store-room or warehouse. Rule 178 provides for the Forms of licence. The appropriate forms of licence in respect of storage of tobacco for sale are Form L-2 (application for licence to carry on wholesale trade in unmanufactured products liable to a central duty of excise), Form L-3 (application for licence as broker or commission agent in respect of unmanufactured products liable to a central duty of excise), and Form L-5 (application for licence for a private bonded warehouse-storeroom for the storage of excisable goods). It is manifest that under the Rules so framed duty is imposed to obtain a licence on payment of fee for storage of tobacco for sale. It is not disputed that the appellants in all the appeals took out licences under rules 174 and 178 of the Central Excises and Salt Act and paid the licence fee in that behalf to <ORG>. The appellants were also required to pay licence fee for the storage of tobacco for sale under the provisions of the Travancore and the Cochin Tobacco Acts and the Rules framed thereunder on January 25, 1951.

It is true that under the Central Excises and Salt Act , 1944, the provision for obtaining licences for storage is a provision ancillary to the recovery of excise duty, whereas under the Travancore and the Cochin Acts, the levy of licence fee was imposed in pursuance of a scheme for maintaining control on the sale of tobacco without expressly levying any excise duty. But on that account, it cannot be said that the provisions relating to the requirement of licences and the payment of licence fees for storage of tobacco for sale under the Travancore and the Cochin Acts were not provision corresponding to the provisions of s. 6(b) under the Central Excises and Salt Act , 1944 and the rules framed under the Act requiring that licences shall be taken out for storage of tobacco for sale and fee shall be paid in respect thereof. In my judgment the relevant rules made under the Travancore and the Cochin Tobacco Acts requiring licences to be taken for storage of tobacco and in force on April, 1, 1950, were law corresponding to the provisions of the Central Excise and Salt Act , 1944, and the rules framed thereunder which required licences to be taken out for storage of tobacco and for payment of licence fee in respect thereof and to that extent the provisions imposing an obligation to take out licences and to pay licence fees under the Tobacco Act s of Travancor and the Cochin States were superseded and the State of Travancore Cochin had no authority to promulgate rules 14, 15 and 16 under the Notification issued in <ORG> dated January 25,1951, and to levy licence fee for storage of tobacco.

It is unnecessary to consider whether the remaining provisions of the Travancore and the Cochin Tobacco Acts and the Rules framed there under were law corresponding with the Central Excises and Salt Act , 1944.

For these reasons I agree that the appeals be allowed, and the order passed by <ORG> be set aside. In each petition a writ will issue declaring that the levy of licence fee under the Notification dated January 25, 1951, is without authority of law, and that the State of Travancore-Cochin do forbear from levying and collecting the licence fee.

Appeals allowed.


<NAME>, <NAME> and <NAME> and <NAME>, <NAME>.

1. One <NAME> was declared to be insolvent by <ORG>, Cawnpore, and the respondent was appointed to be receiver of his estate. On the application of the respondent, under Section 37 of the Provincial Insolvency Act, certain transfers made by the insolvent in favour of the applicant were set aside by an order dated the 18th of March, 1911. The applicant presented an appeal to the District Judge on the 26th of April, 1911. His appeal was within limitation only if he was entitled under Section 12 of the Limitation Act to deduct the time spent by him in obtaining a copy of the order of the court of first instance. The District Judge, following the decision of <NAME> and <NAME>, JJ. in <NAME> (1911) I.L.B. 33 All. 738 held that the applicant was not entitled to the benefit of Section 12 of the Limitation Act. Accordingly he dismissed the appeal. This is an application for revision of the order of the District Judge. It has been treated by the office as a first appeal from an order, but it is an application under the proviso to Section 46(1) of the Provincial Insolvency Act.

2. In the course of their judgment in the case cited, <NAME> and <NAME>, <NAME>., say that the only case in this <ORG> bearing on the point of which they are aware, is that of <CITATION> (1901) I.L.R. 23 All 277 (the actual reference is to a case reported at page 270 of the same volume, but this was evidently a slip). They distinguished that case on the ground that it proceeded on a very special line of reasoning. It seems to us that the decision of Strachey, C.J., and Banerji, J., in I.L.R., 23 All, 277, proceeded upon two grounds, namely, that Section 5 of the Limitation Act of 1877 did not, within the meaning of Section 6 of that Act, 'affect or alter' a period of limitation prescribed by the N.W.P. Rent Act of 1881, and that the latter Act could not be considered a complete Code in itself so as to render the general provisions of the Limitation Act inapplicable. <NAME> and <NAME>, <NAME>., held that if Section 12 of the Limitation Act were applied to an appeal under Section 46 of the Insolvency Act, it would, within the meaning of Section 29 of the present Limitation Act ,' affect or alter' the period of limitation prescribed for an appeal under the Insolvency Act . As the language of Section 29 of the present Limitation Act is to all intents and purposes the same as that of Section 6 of the Limitation Act of 1877, the decision of <NAME> and <NAME>, <NAME>., conflicts with that of Strachey, C.J., and Banerji, J., upon a question of the correct construction of the Limitation Act , which is of considerable importance. It also conflicts with the decision of Banerji, J., in <NAME> v. <ORG> Weekly Notes 1902 p. 34. which was not brought to their notice.

3. The question has been argued very fully before us, and our attention has been drawn to a large number of decisions bearing upon it. For the applicant it has been contended that the Provincial Insolvency Act is not a 'special law' within the meaning of Section 29 of the Limitation Act, and that, even if it is a 'special law,' the application of Section 12 of the Limitation Act to the appeal in this case does not, within the meaning of Section 29 of that Act, 'affect or alter' the period prescribed for an appeal under Section 46 of the Provincial Insolvency Act.

4. So far as we are aware, the expression 'special law' has not been defined by the <ORG>, except in the Penal Code , and it is not permissible to use the definition in that Code as a guide to the meaning of that expression in the Limitation Act . It may be that the expression was intended to cover only laws like the Rent Act X of 1859, which was held by <ORG> to be a complete Code in itself, but it seems more likely that the words were intended to be understood in their ordinary sense as meaning an Act dealing with a particular subject. Even so the expression is not free from, difficulty. The Code of Civil Procedure is a general law (see L.R., 3 I.A., 7), though it purports to deal only with procedure. The Forfeited Property Act of 1859 is obviously a special law. But what of such an Act as the Transfer of Property Act ? The Registration Act has been held to be a special law, and we think rightly. The Provincial Insolvency Act , though it applies to a large part of British India, appears to us to be a special law, as it creates a special jurisdiction and deals with a very special branch of the law. We are of opinion that the Provincial Insolvency Act is a special law within the meaning of Section 29 of the Limitation Act.

5. We think the course of legislation on the subject throws some light upon the true meaning of Section 29 of the present Limitation Act . Act XIV of 1859, Section 3 , provided that when by any law , then or thereafter to be in force, a shorter period of limitation than that prescribed by that Act was specially prescribed for the institution of a particular suit, such shorter limitation should be applied notwithstanding that Act ; and Section 14 of that Act contained provisions similar to those contained in Section 14 of the present Limitation Act . While the Act was in force, a question arose I whether a suit for rent under Act X of 1859 was governed by Act XIV or not. A Full Bench of <ORG> answered this question in the negative, see <NAME> v. Modhoosoodun Paul Chowdhry (1865) 2 W.R. Act X Rulings p. 21 and this decision was approved in a later case by their Lordships of <ORG>, who said that the special legislation contained in Act X was of such a special kind that according to the well-established rule for the construction of Statutes, it must be presumed that the <ORG> did not intend by the general enactment in Act XIV to interfere with it. They pointed out that Act X was intended to form a special and complete Code of Procedure with regard to the trial of questions relating to rent and the occupancy of land in the mufassil--Unnoda Persaud Mookerjee v. <NAME> (1872) 15 B.L.R. 60 Note. In accordance with that decision it was held by a Full Bench in <CITATION> (1891) I.L.R. 18 Calc. 368 that Section 14 of the Limitation Act of 1877 did not apply to suits under Act X of 1859. See also <CITATION> (1889) I.L.R. 17 Calc. 263.

6. Section 6 of the Limitation Act of 1871 provided as follows:

When by any law not mentioned in the schedule hereto annexed and now or hereafter to be in force, a period of limitation differing from that prescribed by this Act is especially prescribed for any suits, appeals or applications, nothing herein contained shall affect such law.

This was replaced in 1877 by Section 6 of the Limitation Act of that year, which provided as follows:

When by any special or local law now or hereafter in force in British India, a period of limitation is specially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed.

7. The alteration in the language is noticeable and suggests an intention to limit the operation of special or local laws to the periods prescribed by them and to re-introduce the principle of Section 3 of the Limitation Act of 1859, which limited the operation of other Acts to any shorter periods prescribed by them. This seems to have been the view taken in <CITATION> (1879) I.L.R. 5 Calc. 110 where Section 12 of the Limitation Act of 1877 was held to cover an application for review of judgment in a case under the Bengal Rent Act of 1869 and in <CITATION> (1879) I.L.R. 5 Calc. 314 where Section 5 of the Limitation Act of 1877 was held to apply to a suit under the Bengal Rent Act of 1869. Similarly in <CITATION> (1882) I.L.R. 8 Calc. 910 and in <NAME> v. Dinabashy Shaha (1884) I.L.R. 10 Calc. 265 it was held that Sections 5 and 14 of the Limitation Act of 1877 applied to suits under Section 77 of the Registration Act. The last three decisions were approved and followed by <ORG> in <NAME> v. The President of <ORG> (1884) I.L.R. 8 Bom. 529. On the strength of three of the Calcutta decisions it was held in a reference under the Madras Forest Act of 1882, I.L.R., 10 Mad., 210, that Section 5 of the Limitation Act of 1877 applied to an appeal under that Act, and in <NAME> v. <NAME> (1889) I.L.R. 12 Mad. 467 that Section 14 of the Limitation Act of 1877 applied to a suit under the Madras Rent Recovery Act, 1865.

8. After examining the cases mentioned above and others, <NAME>, J. in <CITATION> (1893) I.L.R. 18 Mad. 99 came to the conclusion that the general provisions of the Limitation Act of 1877 were applicable to suits and other proceedings under Acts prescribing special periods of limitation, unless those Acts were complete Codes in themselves to which the general provisions of the Limitation Act could not be applied without incongruity. This view was accepted by <NAME>, C.J., and <NAME>, J., in <CITATION> (1907) I.L.R. 23 All. 277 and by <NAME>, J. in Joti Sarup v. <NAME> Weekly Notes 1902 p.34 both cases under the N.W.P. Kent Act, 1881.

9. There is therefore authority for the proposition that the general provisions of the Limitation Act , 1877, are applicable to suits and other proceedings under other Acts which prescribe special periods of limitation, but which are not intended to be complete Codes in themselves, and that the words ' affect or alter' in Section 6 of the Limitation Act of 1877 relate only to the period prescribed and not to the way in which that period is to be computed. The same words appear in Section 29 of the present Limitation Act . It cannot, however, be said that this view has gone unchallenged. <NAME>, <NAME>, in the case reported in I.L.R., 18 Mad., 99, expressed the opinion that the application of the general provisions of the Limitation Act to periods of limitation prescribed by other Acts did 'alter or affect' those periods and <NAME>, <NAME>, in a land acquisition case in I.L.R., 30 Bom., 275, said it was a moot question whether the general provisions of the Limitation Act could be applied in this way, though he followed a previous decision of <ORG> by which he considered himself bound.

10. The question is one of considerable difficulty, and it must be admitted that at first sight it is straining the words to hold that the application of the general provisions of the Limitation Act to periods of limitation prescribed by other Acts does not 'affect or alter' those periods. In one sense it certainly does. But the construction accepted by <NAME>, <NAME>, <NAME>, J., and <NAME> J., seems to us to be correct. Apart from the history of this piece of legislation, we find it difficult to believe that when the <ORG> introduced, as it has, into several Acts, provisions giving a right of appeal and prescribing periods within which the right may be exercised, it intended as a general rule that those provisions should be applied without reference to the general provisions contained in the general Limitation Act . In many, if not most, cases the Code of Civil Procedure is made applicable with the result that an appellant must produce a copy of the order against which he is appealing. It is reasonable to suppose that the <ORG> intended to give him time to procure a copy of the order. The general provisions of the Limitation Act are founded mainly upon equitable considerations which apply as much to periods of limitation prescribed by special Acts as to periods of limitation prescribed by the Limitation Act itself.

11. Upon the question whether this or that Act is a complete Code in itself to which the Limitation Act should not be applied, there is considerable difference of opinion. In some of the cases already cited, <ORG> held that the general provisions of the Limitation Act , 1877, were applicable to suits under the Registration Act . But in <CITATION> (1893) I.L.R. 18 Mad. 99 three Judges held that they did not apply and that decision was followed in <NAME> v. <NAME> (1903) I.L.R. 30 Calc. 532. In <NAME> v. <NAME> (1906) I.L.R. 28 All. 48 it was held that Section 5 of the Limitation Act, 1877, did apply to a suit under the Registration Act . It is unnecessary to express any opinion on this point, but the soundness of one of the reasons given for holding that the general provisions of the Limitation Act do not apply to suits under the Registration Act , namely, that a suit to compel registration of a document might be delayed for many years under Section 7 of the Limitation Act of 1877 ( Section 6 of the present Act), is open to question, for that Section applies only to suits the period of limitation for which is prescribed by the schedule. The same reason was given by <NAME> and <NAME>, JJ., for holding that the general provisions of the Limitation Act did not apply to proceedings under the Insolvency Act .

12. There remains the question whether the Provincial Insolyency Act is a complete Code in itself. In our opinion it is not order to ascertain the procedure to be followed in original, appellate or revisional proceedings, one has to refer to the Code of Civil Procedure. It appears to us that the object of Section 47 of the Act was to attract the provisions of the Code of Civil Procedure. There are several Acts, for example, the Succession Act , the Probate and Administration Act , and the Land Acquisition Act , which make the Code of Civil Procedure applicable to proceedings under the Act and give a right of appeal to <ORG>, but do not prescribe any period of limitation for the appeal. It has always been assumed, probably rightly, that such appeals are appeals under the Code of Civil Procedure, governed by what is now Article 156 of Schedule I to the Limitation Act and by the general provisions of the Act also Sub-section (4) of Section 46 of the Provincial Insolvency Act does not seem to have been required, but whether it was required or not, we do not think that it can have been inserted for the purpose of rendering the general provisions of the Limitation Act inapplicable.

13. For the above reasons we are of opinion that Section 12 of the Limitation Act applied to the appeal presented by the present applicant to the District Judge. In this view the appeal was within time. We set aside the order of the District Judge and remit the case to him to be disposed of according to law. Costs in this Court to be costs in the cause.


JUDGMENT <NAME>, J.

1. The plaintiff in this case seeks to set aside the decree passed in Original Suit No. 129 of 1887 in favour of the defendant, his wife, awarding to her a maintenance of ten rupees per mensem. The suit is founded on the allegation that in 1893 the defendant committed adultery with one <NAME>. The defence is a simple denial of the case set up in the plaint.

2. The only issues to be determined are--has the plaintiff made out the case set up by him, and, if so, to what relief is he entitled?

3. His Lordship recorded an admission that the parties had separated in 1886 and had never since resided together, and, after discussing the evidence, stated, as his finding thereon, that the defendant had in 1893 become pregnant by <NAME> and had given birth to a child by him. The judgment continued as follows:

4. I have no hesitation in finding that the plaintiff has made out his case.

5. As to the relief prayed, it has been contended on behalf of the defendant, that she is entitled under any circumstances to at least bare maintenance. <CITATION> . 1 Bom. 559 relied upon in support of this contention has been dissented from in <NAME> v. Ganga I.L.R. 7 Bom. 84. In <NAME> v. Rajonimoni Dasi I.L.R. 17 Cal. 674 679 <NAME>, <NAME>, and <NAME>, however, seem inclined to hold that the view taken in the earlier Bombay case is warranted by the texts of Hindu law, and further that it has the support of reason, inasmuch as the allowance of mere food and raiment to an unchaste woman is prescribed: in order that she may have a locus poenitentioe, and that she may not be compelled by sheer necessity to continue to lead a life of shame and misery. However, in <CITATION> . 17 Mad. 392 recently decided by this <ORG>, the learned Chief Justice and <NAME>, <NAME> observe: "We must follow the decision in <NAME> v. Ganga I.L.R. 7 Bom. 84 and Vishnu Shambhog v. Manjamma I.L.R. 9 Bom. 108 and hold that unchastity of a widow deprives her wholly of her right to maintenance. No text has been cited in favour of the theory that a bare maintenance can be allowed." In the above cases it will be seen that the question related to the provision to be made for widows, whilst here it is as to the maintenance of a wife. Referring to the existence of a distinction between the two classes of cases, <NAME>, <NAME> in <NAME> v. Ganga I.L.R. 7 Bom. 84 already cited, observes thus: "The only analogous cases in which such a distinction is to be found, are those of an adulterous wife and mother for which special texts are provided. The close and tender relations which exist between husband and wife and mother and son may well account for the ancient law-givers laying down, as a rule of conduct, for a husband and son, that even the wife or mother who has been guilty of unchastity should not be left in a state of perfect destitution; but it has still to be determined how far these texts will be regarded as mandatory and not merely perceptive; and if the former, in what cases and to what extent the <ORG> will enforce them." It must be admitted that the point is one of some difficulty. For although the doctrine of the ancient law-givers enunciated in the texts in question is grounded on the sound considerations adverted to by <NAME>, <NAME>, and <NAME>, <NAME>, yet it is not easy to formulate precisely the cases in and the extent to which that doctrine is to be applied. But assuming that the texts are not mere moral precepts but mandatory, I think--following the view adopted by the Calcutta <ORG> in <NAME> v. Rajonimoni Dasi I.L.R. 17 Cal. 674 679 in the case of the widow--it can be safely laid down that maintenance, however small, ought not to be awarded by <ORG>s, even to a wife, when it appears that she, about the time of the litigation, persists in a vicious course of life. To hold otherwise would be contrary to all morality and principle; and I have little doubt that before a decree for maintenance is given to a wife who has once been guilty of infidelity, she must show, not only that at the time of the plaint and the trial she was leading a chaste life, but also that she had done so for a sufficient period previously so as clearly to lead to the conclusion that she has completely renounced her immoral course, and that, in fact, she is a reformed woman. In the present case, however, there is not a particle of evidence to prove such is the case with the defendant. On the contrary, the defendant appears to be so strongly addicted to vice, and her misconduct has been so recent, open and continuous, that I am unable to say that I am satisfied that even the idea of definitely changing her present mode of life has occurred to her. Her case seems, moreover, to be complicated by the fact that she is the mother of an illegitimate child ; since a text of <NAME> treats conception by unlawful commerce to be such an aggravation of a disloyal wufe's offence as to justify complete desertion by the husband, though it should be added that <NAME> appears to restrict the text to the case of the three regenerate classes--Colebrooke's Digest, book IV, chapter I, verse LXXVII; and therefore, by implication, to hold it to be inapplicable to Sudras, to which caste the parties in the present case belong. But whether even among Sudras the existence of an illegitimate issue born to the wife before she changed her life would not, under certain circumstances, be an obstacle in the way of her claiming even bare maintenance is rather a delicate question, However this may be, and although no doubt a mere false defence by itself would not deprive the party setting it up of her legal right, the attempt which the defendant has made in this case to fasten upon the plaintiff as his legitimate issue the fruit of adultery is clear proof that she is far from a penitent wife who may be allowed to seek the benefit of the humane provision mentioned in the texts referred to in <NAME> v. Ganga I.L.R. 7 Bom. 84 and <NAME> v. Rajonimoni Dasi I.L.R. 17 Cal. 674 679.

6. The plaintiff is, therefore, entitled to the relief claimed. I set aside the decree in Original Suit No. 129 of 1889 and the execution proceedings taken therein subsequent to this suit. The defendant must pay the costs of the plaintiff.

7. <NAME>, Attorney for Plaintiff.