REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5102 OF 2006 Gurudassing Nawoosing Panjwani Appellant(s) versus The State of Maharashtra and others Respondent(s) J U D G M E N T | | |M.Y. Eqbal, J.: | This appeal by special leave is directed against order dated 13.7.2005 passed by the Division Bench of the Bombay High Court. Dismissing Letter Patents Appeal preferred by the appellant against the order of the learned Single Judge who dismissed his writ petition and confirmed the orders passed by the State Minister for Revenue in the proceeding R.T.S.3402/ Pra.kra.309/L-6 dated 18th October, 2002. 2. It is the appellant’s case that his father Shri Nawoosingh Panjumal Panjwani was a displaced person who migrated from Pakistan to India during the period of partition and the appellant’s family while in Pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas. After migration, the family took shelter at Refugee Camp of Pimpri, Pune in Maharashtra. In view of enactment of Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Union of India, the immovable properties left behind by Muslims who had migrated to Pakistan were acquired and the same was distributed to displaced persons as a “compensation pool”. Accordingly, father of the appellant was allotted a land admeasuring 2 acres 5 gunthas bearing Revenue Survey Nos.351 and 118/2 situated at Village Lonavala, Taluka Maval, District Pune. It has been pleaded by the appellant that Survey No.118/1 and 118/2 are one and the same thing. 3. The facts in brief, as narrated in the impugned order, are that Survey Nos.118, 328 and 351 of Lonavala were originally owned by one Haji Habib Tar Mohammed Janu. The said Haji Habib Tar Mohammed Janu migrated to Pakistan and while going to Pakistan, he sold his property to one Smt. Hajrabi Haji Yusuf on 4.6.1949. However, this transaction was cancelled by the Collector and Custodian of Evacuee Property on 17.4.1949 as per Section 8(i) of the Evacuee Properties Act and these lands were accordingly entered as Evacuee Property by the Tahsildar, Maval on 26.10.1949. It appears that these survey numbers were also given C.T.S.No. 129, 130-A, 130-B and 133. It appears that in CTS No.129, 130-A, 130-B and 133, apart from vacant land there is a bungalow No.52- Habib Villa. It appears that the Regional Settlement Commissioner placed this property for auction through Government Auctioner and one Gulabbai Desaipurchased the said property in auction for a consideration of Rs.16,750/- on 17.5.1956 and, accordingly, sale certificate was issued by the Regional Settlement Commissioner, Bombay on behalf of the Government. In the said sale certificate the C.T.S. No 129, 130-A, 130-B and 133 of Village Lonavala were mentioned. The area of this CTS Nos. were as under: 129 - 55.16 sq.mts. 130A - 1651.1 sq.mts. 130B - 2934.02 sq.mts 133 - 3237.00 sq.mts ______________ Total 7897.21 sq.mts. ------------------ 4. On the basis of the said sale certificate the mutation Entry No.1836 was effected in the village record in favour of Gulabai Desai, and thereby her name was entered in Survey Nos.118/1B and 328 of village Lonavala to the extent of 29.30 Ares and 70 Ares respectively. Thereafter, Gulabai sold CTS No.133 admeasuring 33 Gunthas on 24.4.1977 to Respondent No.3 Genu Kadu. The said Gulabai also gifted her remaining area from this Survey numbers to her grandson Anil Gajanan Desai on 15.1.1979, who in turn has sold his properties to Respondent no.2 - Prem Hasmatraj Lalwani in the year 1980. 5. The Survey Nos.118/2 and 351, being Evacuee Properties, were allotted to the Appellant in the year 1956. Later on, it was found that the Appellant is in possession of more area and, therefore, the said order was modified on 6.5.1982 and excess area was granted to the Appellant on payment of Rs.31,360/-, which Appellant had paid on 17.5.1982 in Government Treasury and thereby the Deputy Collector and Assistant Settlement Commissioner, Pune granted the excess land to the Appellant, and thereafter the dispute started between the parties. 6. In the impugned order, Division Bench made it clear that since the dispute between the parties was in respect of the area, as to what has been purchased in auction sale by Gulabai Desai and what is the area allotted to the Appellant by the orders of the Deputy Collector and Deputy Custodian of Evacuee Properties, the Appellant requested the Bench not to enter into the merits on this question in this LPA since the parties may prosecute their remedies in the Civil Court for such adjudication, and therefore, that aspect was not considered by the High Court. However, in the facts of the conflicting claims, the Appellant made grievance to the Deputy Collector and the Deputy Custodian of Evacuee Properties in respect of the Mutation made in favour of the Respondent Gulabai and other Respondents and, therefore, by order dated 18.9.1984 the Deputy Collector and Deputy Custodian of Evacuee Properties, Pune, directed the Sub-Divisional Officer, Haveli Sub Division to take up the case in revision under Section 257 of Maharashtra Land Revenue Code and pass necessary orders. In view of these directions, the Sub-Divisional Officer, Haveli, Sub Division, Pune, initiated proceeding RTS Revision 14 of 1984 and by order dated 30.7.1985 cancelled the mutation Entry No.1836 which comprises land admeasuring 7897 sq. yards and directed necessary corrections in the record as per the observations made in the order. 7. It appears that the said order was taken in appeal by the respondent and the matter was remanded to the Sub Divisional Officer. After remand, the Sub Divisional Officer, conducted inquiry and again passed an order on 29.10.1987 and confirmed the earlier order. Therefore, the RTS Appeal No.128 of 1987 was preferred before the Collector, which was disposed off by the Additional Collector on 13.7.1993. By the said order, the Order of the third Sub-Divisional Officer was maintained. However, further inquiry as directed by the SDO was to be conducted. Since the mutation Entry No.1836 was cancelled by above order, the Talathi gave effect to these orders and effected the mutation Entry No.2176 and showed the disputed properties in the name of the Collector and Deputy Custodian of Evacuee Properties. The directions were issued by the Collector to the Tahsildar to place the appellant in possession of the property as per the orders of the Deputy Collector and the Deputy Custodian of Evacuee Properties. However, instead of giving effect to those orders, it appears that the Revenue Officers at Tahsil level effected two mutations, viz, Mutation No.2377 and 2394. By mutation entry No.2377 the name of respondent was again mutated in the record and by the mutation Entry No.2394 the name of Genu Kadu was mutated in the record. Since the Collector noticed on complaint that the orders of the Collector has been bypassed or surpassed by the Subordinate Revenue Officers, the Collector by order dated 12.7.1999 directed the SDO to take these mutations namely mutation Entry No.2377 and 2394 in revision and therefore the Sub-Divisional Officer, Maval Division has taken these mutations in revision bearing RTS Revision No.12 of 1999. The said revision was decided by the Sub Divisional officer at Maval on 28.1.2000 and those mutations were cancelled. 8. Being aggrieved by the order passed in the said revision, Respondent No.2 Lalwani preferred RTS Appeal No.81 of 2000 and the Respondent No.3 Genu Kadu preferred RTS Appeal No.114 of 2000. Both these RTS Appeals were heard by the Additional Collector, Pune and by order dated 28.5.2001 the Addl. Collector, Pune dismissed the said appeals and confirmed the order of the Sub Divisional Officer, Maval. Aggrieved by the said order of the Additional Collector, Respondent No.2 preferred RTS Revision No.330 of 2001 under Section 257 of Maharashtra Land Revenue Code, 1966 before the Additional Commissioner, Pune Division, Pune. The said revision was decided by the Additional Commissioner, Pune by order dated 22.11.2001 and the said revision was dismissed. 9. Respondent No.2 challenged this order of the Additional Commissioner by filing the proceeding RTS 3402/Pra.kra.309/L-6 by way of second revision before the Revenue Minister for State and the said proceeding was decided by the Minister for State on 18.10.2002. The Revenue Minister allowed the said proceeding and set aside the orders passed by the Sub Divisional Officer, Maval dated 28.1.2000, order dated 28.5.2001 of Additional Collector, Pune and of Additional Commissioner dated 22.11.2001, and thus, restored the position as reflected by the Mutation Entries Nos.1836 and 2377 and 2394. Thus, all the entries in favour of the Respondents were protected and maintained by the order of the State Minister for Revenue. 10. Appellant challenged the order dated 19.10.2002 passed by the Minister by filing a writ petition, which was dismissed by learned Single Judge of the Bombay High Court. Thereafter, the appellant filed Letters Patent Appeal, which was also dismissed by the Division Bench holding that when the State Minister for Revenue entertained the matter, he was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and, therefore, the order passed by him under the said authority is within his jurisdiction, power and competence. The Division Bench observed thus: “…We record our finding that under Section 257 of the Maharashtra Land Revenue Code more than one revision is possible. Now coming to the facts of the present case, the mutation Entry No.1836 was in fact certified. However, the Sub-Divisional Officer has taken the said mutation in revision in RTS Revision No.14 of 1984 and has set aside the mutation by order dated 30.7.1985. There was appeal as against that order which was remanded. It was again decided by the Sub Divisional Officer on 29.10.1987 and the said mutation was set aside. There was RTS Appeal No.128 of 1987 which was decided on 13.7.1993. In view of these orders the mutation entry No.1836 was cancelled and Mutation Entry No.2176 was effected whereby the name of the Collector and the Deputy Collector of the Evacuee Property was entered into 7 X 12 extracts. It is further found that when the orders of the Collector directing to put the petitioner into possession were not obeyed by the subordinate Revenue Officers and the Revenue Officers effected the mutation entry No.2377 in favour of the Respondent Nos.3 Gulabai Desai and Mutation Entry No.2394 in favour of the Respondent No.5 Genu Kadu and thereafter for second time the special Divisional Officer, Maval, has exercised the revisional powers under Section 257 and initiated proceeding RTS Revision 12 of 1999 in respect of the mutation entry No.2377 and 2394. The RTS Revision 12/99 was allowed on 28.1.2000 as against that two RTS appeals namely, RTS Appeal No.81 of 2000 and RTS Appeal No.114 of 2000 were preferred by the Respondent. They were decided on 28.5.2001. As against that the RTS Revision No.330 of 2001 was preferred. The same was dismissed. As against that the RTS proceeding bearing No.3402 /Pra.Kra.309/L-6 was preferred before the Minister for State. All these proceedings will show that twice the Sub-Divisional Officer has exercised the revisional power under Section 257 at the directions of the Collector, namely the RTS Revision No.14 of 1984 and RTS Revision No.12 of 1999. It will further reveal that the appeals as against the RTS Revision No.14 of 1984 was preferred by the parties in view of the provisions of Section 247 and 249 sub-section 2. It will equally appear that when the orders were passed in Revision Application No.12 of 1999 before the Sub Divisional Officer in exercise of the powers under Section 257 the parties have preferred two RTS appeals in view of the provisions of Section 247 and 249 sub-section 2. Not only that, thereafter the RTS Revision Application No.330 of 2001 was also preferred before the Commissioner and if the view is taken that the second revision is not tenable then in that circumstances since the first order passed in RTS Revision No.12 of 1999 is a revisional order, this second revision before the Commissioner being RTS Revision No.330 of 2001 would not have been tenable. However, said revision RTS 330 of 2001 is tenable since the appeals as provided under Section 247 and 249 intervene in between the revisional orders passed by the Sub-Divisional officer and the Commissioner. Thus, in short, we find that the scheme under Maharashtra Land Revenue Code is quite different scheme and it permits more than one revision. Thus, viewed from any angle, we find that the State Minister for Revenue when he entertained the matter, State Minister for revenue was possessed of jurisdiction under Section 257 of the Maharashtra Land Revenue Code and therefore the order passed by him under the said authority is within his jurisdiction, power and competence.” 11. Hence, the present appeal by special leave. 12. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant, mainly attacked the revisional power exercised by the Minister concerned in purported exercise of jurisdiction under Section 257 of the Maharashtra Land Revenue Code. In the alternative, learned Senior counsel submitted that even if it were to be admitted without prejudice that second revision is maintainable, the Minister being the revisional authority should not have interfered with the findings recorded by all the six Revenue Authorities. Referring the decision of the Bombay High Court in the case of Sambappa vs. State of Maharashtra [(2002) SCC on line, Bombay 1222], learned counsel submitted that when the Sub-Divisional Officer, Additional Collector and Additional Commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries, in such a case, the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. Section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. Learned counsel referring the revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure tried to impress us that when the power of revision is given to the District Judge, then the High Court cannot entertain second revision petition under Section 115 of the Code. Learned counsel relied upon the decision of this Court in the case of State of Kerala vs. K.M. Charia Abdulla & Co., AIR 1965 SC 1585 and Hari Shankar vs. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698. 13. Mr. Ahmadi, learned senior counsel further submitted that a request was made to the High Court not to enter into the merit of the case, and to confine itself to the question whether a second revision was at all maintainable, in the light of the ratio in Harishankar’s case (supra), (1962) Suppl.(1) SCR 933, Hiralal Kapur vs. Prabhu Choudhury, (1988) 2 SCC 172 and Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others, (1987) 3 SCC 538. Learned counsel also drew our attention to the decision of this Court in Dharampal vs. Ramshri, (1993) 1 SCC 435 where this Court held that a second revision to the High Court under Section 482 of the Cr.P.C. was not permitted. 14. Lastly, Mr. Ahmadi submitted that the second revision would not lie under Section 257 of the Revenue Code since Section 259 of the Code provides an opportunity to the State Government to only correct any “Final Order” while exercising power under the provisions of Section 257 i.e. with regard to its legality and propriety. 15. Mr. Ravindra Srivastava, learned senior counsel appearing for the respondent–State, at the very outset submitted that the appellant conceded before the High Court not to decide the merit of the case. The only point raised before the High Court was with regard to the maintainability of second revision before the State Government under Section 257 of the Revenue Code. Learned counsel submitted that Section 257 expressly confers power of revision on the State Government which power is coupled with power of control and superintendence. Learned counsel submitted that the Commissioner or the Additional Commissioner is not equal in a rank but subordinate to the State Government. Learned counsel submitted that the State Government is the supreme revenue authority and existence of more than one appeal or revision to an aggrieved party is not per se abhorrent to any legal principle; depends upon the Statute. Mr. Srivastava then contended that the High Court correctly analysed and appreciated the scheme of the Code vis a vis judicial review in revenue matters. Learned counsel put heavy reliance on the decision of this Court in the case of Ishwar Singh vs. State of Rajasthan and others, (2005) 2 SCC 334 for the proposition that there can be a second revision under the same provision of the Statute. 16. The only question that falls for consideration is as to whether a second revision under Section 257 is maintainable and that whether the State Government exceeds its jurisdiction in entertaining the second revision? 17. Before we proceed to decide the aforesaid question, we would like to refer the relevant provisions of the Maharashtra Land Revenue Code 1966. 18. Section 2(31) defines the Revenue Officer as under:- “2 (31)" revenue officer" means every officer of any rank whatsoever appointed under any of the provisions of this Code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith ;” 19. Chapter II deals with the Revenue Officers, their powers and duties. Sections 5, 6 and 7 reads as under:- “5. Chief Controlling authority in revenue matters. The chief controlling authority in all matters connected with the land revenue in his division shall vest in the Commissioner, subject to the superintendence, direction and control of the State Government. 6.Revenue Officers in division. The State Government shall appoint a Commissioner of each division; and may appoint in a division an Additional Commissioner and so many Assistant Commissioners as may be expedient, to assist the Commissioner: Provided that, nothing in this section shall preclude the appointment of the same officer as Commissioner for two or more divisions. 7.Revenue officers in district. (1)The State Government shall appoint a Collector for each district (including the City of Bombay who shall be in charge of the revenue administration there of ; and a Tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. (2)The State Government may appoint one or more Additional Collectors and in each district (including the City of Bombay and so many Assistant Collectors and Deputy Collectors (with such designations such as "First", "Second", Super numerary", etc. Assistants as may be expressed in the order of their appointment), one or more Naib-Tahsildars in a taluka, and one or more Additional Tahsidars or Naib-Tahsildars therein and such other persons (having such designations) to assist the revenue officers as it may deem expedient. (3)Subject to the general orders of the State Government, the Collector may place any Assistant or Deputy Collector in charge of one more sub-divisions of a district, or may himself retain charge thereof. Such Assistant or Deputy Collector may also be called a Sub-Divisional Officer. (4) The Collector may appoint to each district as many persons as he thinks fit to be Circle Officers and Circle Inspectors to be in charge of a Circle, and one or more Talathis for a saza, and one or more Kotwals or other village servants for each village or group of villages, as he may deem fit.” 20. Section 11 of the Code is worth to be quoted herein below:- “11.Subordination of officers. (1)All revenue officers shall be subordinate to the State Government. (2)Unless the State Government directs otherwise, all revenue officers in a division shall be subordinate to the Commissioner, and all revenue Officers 2[in a district (including the City of Bombay)] shall be subordinate to the Collector. 3)Unless the State Government directs otherwise, all other Revenue Officers Including survey officers shall be subordinated, the one to the other, in such order as the State Government may direct.” 21. Sections 13 and 14 deal with the powers and duties of all Revenue Officers. 22. From reading of the aforesaid provisions, it is manifest that the State Government makes appointment of the Revenue Officers including the Commissioner and the Chief Controlling Authorities in the revenue matters. Section 5 makes it clear that the Chief Controlling Authority in all matters connected with the land revenue in his Division shall vest with the Commissioner, subject to superintendence, directions and control of the State Government. Section 11 provides that all Revenue Officers shall be subordinate to the State Government. It is, therefore, clear that in revenue matters the State Government is the Supreme Revenue Authority. 23. In the present case, we noticed the scheme of the Code in the matters of hearing and disposal of appeals, revision and review. Section 247 deals with the appeal and appellate authorities, which reads as under:- “247.Appeal and appellate authorities. (1)In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column 1 of the said Schedule. Provided that, in no case the number of appeals shall exceed two. (2)When on account of promotion of change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.” 24. Section 248 is also relevant which provides the forum of appeal to the State Government. Similarly, Section 249 makes provision of appeal against the review or revision. 25. The schedule preferred to in Section 227 mentions the Authorities before whom appeal would lie. The Schedule appended to the Code is as follows:- Schedule E (See section 247) | |REVENUE OFFICER |APPELLATE AUTHORITY | |1. |1., All Officers in a |Sub-divisional Officer | | |Sub-Division, sub-ordinate to|or such Assistant or | | |the Sub-division Off |Deputy Collector as may| | | |be specified by the | | | |Collector in this | | | |behalf. | |2. |Sub-Divisional Officer, |Collector or such | | |Assistant or Deputy |Assistant or Deputy | | |Collector. |Collector who may be | | | |invested with powers of| | | |the Collector by the | | | |State Government in | | | |this behalf | |3. |Collector 1 (including the |Divisional | | |Collector of Bombay) or |Commissioner. | | |Assistant/Deputy Collector | | | |invested with the appellate | | | |power of the Collector., | | |4. |A person exercising powers |Such officer as may be | | |conferred by section 2 (15).,|specified by the State | | | |Government in this | | | |behalf. | | |Survey Officer |Appellate Authority | |1. |District Inspector of Land |Superintendent of Land | | |Records, Survey Tahsildar and|Records or such Officers| | |other Officer not above the |of equal ranks as may be| | |rank of District Inspector of|specified by the State | | |Land Records., |Government in this | | | |behalf. | |2. |Superintendent of Land |Director of Land Records| | |Records and other Officer of |or the Deputy Director | | |equal ranks.,. |of Land Records, who may| | | |be invested with the | | | |powers of Director of | | | |Land Records by the | | | |State Government in this| | | |behalf. | 26. Section 257 is the relevant provision which deals with the power of State Government and of certain revenue and survey officers to call for and examine the records and proceedings of Subordinate Officers. Section 257 reads as under:- “257. Power of State Government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. (1) The State Government and any revenue of survey officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Land Records, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue or survey officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. (2) A Tahsildar, a Naib-Tahsildar, and a District Inspector of Land Records may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held. (3)If in any case, it shall appear to the State Government, or any officer referred to in sub-section (1) or sub-section (2) that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit. Provided that, the State Government or such officer shall not vary or reverse any order affecting any question of right between private persons without having to the parties interested notice to appear and to be heard in support of such order. Provided further that, an Assistant of Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pall such order thereon as he may deem fit.” 27. A bare reading of the aforesaid provision would show that the provision uses the word ‘and’ for State Government but for other Revenue officers it uses the word ‘or’. The language and the words used in the said provision suggest that jurisdiction of the State Government is concurrent with the jurisdiction of other Revenue officers in deciding the revision. Hence, even if one party goes to the Commissioner in revision, the State Government can still be approached under Section 257 for revision. The power of revision exercised by any Revenue officer including the Commissioner is a proceeding by a subordinate officer and the State Government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the Revenue officers. 28. Further, in view of the fact that State Government itself appoints the Revenue officers including the Commissioner under the scheme of the Code and all Revenue officers are subordinate to the State Government as per Section 11 of the Act, and even the Chief Controlling Authority in all matters connected with the land revenue in his Division is vested with the Commissioner, they are subject to the superintendence, direction and control of the State Government as provided under Section 5 of the Code. The power of the State Government has further been widened by Section 259 of the Code, which reads as under:- “259. Rules as to decisions or orders expressly made final Whenever in this Code, it is provided that a decision or order shall be final or conclusive, such provision shall mean that no appeal lies from any such decision or order; but it shall be lawful to the State Government alone to modify, annul or reverse any such decision or order under the provision of Section 257.” 29. The aforesaid provision makes it clear that even if the decision is considered to be final, the State Government’s power to call for and examine the record and proceedings of subordinate officers is saved. In other words, the State Government in exercise of its revisional as well as general power of superintendence and control can call for any record of proceedings and consider the legality and propriety of the orders passed by the Revenue officers under Section 247 or 257 of the Code. 30. From perusal of the entire scheme of the Code including Section 257, it is manifest that the revisional powers are not only exercisable by the State Government but also by certain other Revenue officers. There is nothing in the Code to suggest that if these revisional powers are exercised by a Revenue officer who has jurisdiction, it cannot be further exercised by a superior Revenue officer or by the State Government. A fair reading of Sections 257 and 259 suggests that if revisional powers are exercised by a Revenue officer having jurisdiction to do so, further revisional power can be exercised by the superior officer or by the State Government. 31. A similar question came for consideration before this Court in the case of Ishwar Singh vs. State of Rajasthan and Others, (2005) 2 SCC 334 under the Rajasthan Cooperative Societies Act, 1965. In that Ac,t by Section 128 power was conferred upon the State Government and the Registrar to call for and examine the records of any enquiry or proceedings of any other matter, of any officer subordinate to them, for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed by such officer. It was submitted by the counsel that Section 128 related to two authorities i.e. the State Government and the Registrar. In fact the two authorities are interchangeable. If one authority exercises revisional power, the other authority logically cannot have exercised such power. Hence, it was argued that second revision was not maintainable. Rejecting the submission this Court held:- “20. Sub-section (2) of Section 124 provides that if the decision or order is made by the Registrar, appeal lies to the Government and if the decision or order is made by any other person, or a cooperative society, the appeal lies to the Registrar. Therefore, under Chapter XIII a clear distinction is made between the State Government and the Registrar. The test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. It is, therefore, not correct as contended by learned counsel for the appellant that the two authorities i.e. the State Government and the Registrar are interchangeable. The power of the Government and the Registrar in terms of Section 128 excludes matters which are covered by Section 125 i.e. revision by the Tribunal.” 32. Considering the entire scheme of the Code, and the provisions contained in Sections 257 and 259, we are of the definite opinion that the Minister concerned of the State Government can entertain second revision to satisfy the legality and propriety of the order passed by the Revenue Officer. The Division Bench of the Bombay High Court has elaborately discussed the question and passed the impugned order holding that Section 257 confers jurisdiction to the State Government to entertain its revision against the order passed by any Revenue Officer either in appeal or in revision. We find no infirmity in the impugned order passed by the High Court. Hence, this appeal has no merit which is accordingly dismissed. 33. Before parting with the order, we must make it clear that in view of the request made by the appellant before the High Court not to enter into the merit of the case since the party may prosecute their remedies in the Civil Court for adjudication, we have not expressed any opinion with regard to the merit of the case of the parties. The parties may prosecute their remedies in Civil Court in accordance with law. …………………………….J. (M.Y. Eqbal) …………………………….J. (C. Nagappan) New Delhi November 06, 2015


PETITIONER: GUJARAT ELECTRICITY BOARD & ANR. Vs. RESPONDENT: ATMARAM SUNGOMAL POSHANI DATE OF JUDGMENT31/03/1989 BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J) CITATION: 1989 AIR 1433 1989 SCR (2) 357 1989 SCC (2) 602 JT 1989 (3) 20 1989 SCALE (1)907 ACT: CIVIL SERVICES: Transfer--An incident of service-No employee has legal right to be posted at any particular place--Transfer--Necessary in public interest and efficiency of administration--No employee has right to be absent from duty without sanction of leave. PRACTICE AND PROCEDURE: Supreme Court--Transfer of case from one Bench to another--Entitlement too-Only when Bench is biased or there are other reasonable grounds--Not when a Judge expresses opinion on merits of case on conclusion of hearing. Indian Evidence Act, 1872: Section 114(e)--Registered cover sent to addressee presumption of service----When arises. HEADNOTE: The respondent joined service as technical assistant with the Gujarat State Electricity Board and was later promoted to the post of Deputy Engineer. While he was posted at Surat he was transferred to Ukai Sub-division under the order of the Superintending Engineer dated 29th March, 1974 and he was relieved from his duties at Surat on 30th March, 1974. He made representation to the Addl. Chief Engineer for cancelling his transfer order which was rejected and he was directed to join at Ukai but he did not do so and continued to be absent without sanction of any leave and instead he filed a civil suit challenging validity of the order of transfer. The Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service Regulation No. 113. The respondent failed to join his duty even after a warning. Thereafter the Superintending Engineer sent a letter dated 24th April, 1974 by registered cover which contained a warning but the same was returned back by the postal authorities with an endorse- ment that the addressee refused to accept the same. Meanwhile, the Chief Engineer by his order dated 27th May, 358 1974 discharged the respondent from service in accordance with service Regulation No. 113 as he had continued to remain absent from duty since 30th March, 1974. The respondent filed a writ petition before the High Court challenging the validity of the order of his discharge from service. A learned Single Judge of the High Court quashed the order of discharge but looking to the attitude of the respondent and continued conduct of disobedience of the orders of his superior he was not granted consequential reliefs. The respondent as well as the appellant-Board preferred Letter Patent Appeals. A Division Bench of the High Court dismissed the appeal of the appellant-Board and allowed the respondent's appeal upholding the order of discharge as illegal and void and directed the appellants to reinstate the respondent, to treat him in service, and to grant him benefits of incre- ments, seniority, and promotion. The Division Bench, howev- er, did not grant full back-wages but directed the Board to pay the respondent 50 per cent of back-wages. Against the order of the Division Bench of the High Court the appellants preferred an appeal to this Court by special leave. The appeal came up for hearing and advocates for both the parties were fully heard. Being satisfied that the Single Judge as well as Division Bench of the High Court committed error in allowing the writ petition of the re- spondent, this Court suggested to the counsel for the re- spondent that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court. The bearing was adjourned to enable counsel to obtain instructions from the respondent. On the next hearing another counsel appeared on behalf of the respondent to argue on merits. The Court refused to hear fresh argu- ments as the hearing had already been completed. Thereupon, the respondent appeared in person to make his submissions which the Court refused as oral. hearing has already been completed. However, in the interest of justice the respond- ent was permitted to file written submissions. No written submissions were filed, instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in the Bench of this Court with a prayer to transfer the case to some other Bench. The Court ignored the request of the respondent as it was unusual, uncalled for, and unjustified. 359 Allowing the appeal by special leave, this Court, HELD: No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same. but no right to get a case transferred to any other Bench, can legiti- mately be claimed merely because the Judges express opinion on the merits of the case on the conclusion of hearing. [362E] Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is gener- ally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administra- tion. [362H; 363A] Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representa- tion to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. [363B] If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. [363C] No Government servant or employee of any public under- taking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. [366B] There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on 360 the party, challenging the factum of service. [368B-C] In the instant case, the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No 113. Before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. The respondent acted in an irresponsible manner in. not complying with the order of transfer which led to his dis- charge from service in accordance with the Service Regula- tion No. 113. The Single Judge as well as the Division Bench both therefore erred. in law in setting aside the order of discharge. [368E-G] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3561 of 1986. From the Judgment and Order dated 28.2.1986 of the Gujarat High Court in SCA No. 1176 of 1974. B .K. Mehta, Shishir Sharma and P.H. Parekh for the Appel- lants. Respondent-in-person. (N.P.) The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service. The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter re- fened to as the Board). He was promoted to the post of Deputy Engineer. While he was posted at Surat as Deputy Engineer he was transferred to Ukai subdivision under the order of the Superintending Engineer dated 29th March, 1974. Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March, 1974 to enable him to join at Ukai. He made representation to the Additional Chief Engi- neer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at Ukai. His representation was rejected and he was directed to join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans- fer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat. A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re- spondent before discharging him from services under Regula- tion No. 113. The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities, he refused to grant consequential reliefs regarding reinstatement or payment of back-wages. The respondent as well as the appellant-board, both pre- ferred Letters Patent appeals against the order of learned Single Judge. A Division Bench of the High Court dismissed the appeal preferred by the Appellants but it allowed the respondent's appeal. The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent, and to treat him in service without any break in service and to grant him benefits of increments, seniority, and promotion to which he may be entitled under the rules. The Bench, however, did not grant full back-wages to the respondent instead it directed the Board to pay him 50 per cent of back-wages. Aggrieved, the appellant has preferred the instant appeal after obtaining special leave of this Court. This appeal came up for hearing before us on 28th Janu- ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for the appellants and Sh. Vimal Dave, Advocate, appearing for the respondent were fully heard. After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had commit- ted error in allowing the writ petition and granting relief to the respondent. We expressed our view in the Court and suggested to Mr. Vimal Dave, counsel for the respondent, that if he agreed the original writ petition of the respond- ent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal, the appellants were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly. The hearing was adjourned to enable Sh. Vimal Dave, to obtain instructions from the respondent. The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. We refused to hear the counsel as we had already completed hearing. Thereupon, the respondent himself appeared in person and sought permission to make his submissions personally. We refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis- used adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court, that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh. Vimal Dave, learned coun- sel appearing for the respondent to obtain instructions as aforesaid. The opportunity granted to the respondent has, however, been misused by raising mischievous and frivolous objections instead of filing written submissions. The re- spondent's prayer is accordingly rejected and since oral hearing has already been completed, and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits. Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficien- cy in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a repre- sentation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his serv- ice as he refused to comply with the order of his transfer from one place to the other. There is no dispute that the respondent was holding a transferable post and under the conditions of service ap- plicable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transferred . from Surat to Ukai. The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974. The Chief Engineer who discharged the respondent's services exercised his power under Service Regulation No. 113, which runs as under: "113. The continued absence from duty or overstay, m spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure." The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning, he fails to return to duty, he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking discipli- nary action, under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. Regulation 113 confers wide powers on the authorities to summarily discharge an employee from service, if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. Under the disciplinary rules detailed procedure is required to be followed for removing an employee from serv- ice but Regulation 113 provides for summary discharge from service. Before this power is exercised, two conditions must be satisfied; Firstly, the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave, and secondly, he failed to join his duty even after a warning. The object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to afford him an opportunity to make amends by joining his duty. If even thereafter he fails to join duty, his services are liable to be terminated by an order of discharge. It is noteworthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondent's service. The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f. March 30, 1974 to May 27, 1974. The Division Bench of the High Court held that no warning as contemplated by service Regulation No. 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the im- pugned order of discharge was passed and consequently, the order of discharge was null and void being contrary to service Regulation No. 113 itself. On perusal of the materi- al on record we are of the opinion that the view taken by the High Court is not sustainable as there is sufficient material on record which shows that warning had been issued to the respondent before the order of discharge was issued. In determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representa- tion to the Additional Chief Engineer on 8.4.1974 after the transfer order. The Transfer order was not stayed and as the respondent did not join his duties, he continued to be absent without sanction of any leave. In this situation the Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unautho- rised absence from duty in breach of service Regulation No. 113. The letter is as under: "GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka, Surat-3. Sub: Transfer from Surat to Ukai. You have been relieved on 30.3.1974 A.N. on account of your transfer from Surat to Ukai, but you have not reported to Ukai till today and remained on unauthorised absence on re- lief, which is breach of S.R. No. 112 and 113. Please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of S.R. No. 112 and 113 within 7 days from re- ceipt of this letter. Sd/-Execut ive Engineer (O & M) Surat Copy f.w.c.s. to Superintending Engineer, GEB, Utran." There is no dispute that the respondent received the afore- said letter as he sent a reply to the Superintending Engi- neer on April 20, 1974, a copy of which was annexed as Annexure 'J' by the petitioner, to his petition before the High Court. By that letter respondent stated that he was waiting for the decision of his represen- tation made for reconsideration of his transfer from Surat to Ukai and therefore, the question of his remaining on unauthorised leave was misconceived. Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. No Government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer. Since the respondent continued to be absent from duty the Superintending Engineer by a registered post acknowledgment due letter dated April 24, 1974 informed the respondent that his request to postpone his transfer was rejected and he was directed to join his duty at Ukai and on his failure to do so disciplinary action would be taken against him. The Establishment Officer (P) of the Board, also informed the respondent by his letter dated May 6, 1974 that his repre- sentation against the order of transfer was not accepted and he was directed to obey the order of transfer. A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court. But even thereafter, the respondent did not join his duties. Ultimately, the Chief Engineer of the Board took action against the respond- ent and discharged him from service with effect from 31.3.1974 by his letter dated May 27, 1974. The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent disobeyed the order of transfer and he re- mained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No. 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly misconceived. A warning need not be in any particular form. The object and purpose of the warn- ing as contemplated by the Regulation,. is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his serv- ice. The substance of the Superintending Engineer's letter dated 18th April, 1974 which was admittedly served on the respondent, contained warning to the respondent, which fully met the requirement of Regulation No. 113. Before the High Court a controversy was raised as to whether the registered letter dated 24.4.1974 addressed by the Superintending Engineer to the respondent was received by him or not. The registered cover, containing the letter dated 24.4.1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same. The respondent's case was that no such registered letter was tendered to him by the postman nor he ever re- fused to accept the same. The Division Bench held that letter dated 24.4.1974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned Single Judge it could not do so in the letters patent appeal. The Division Bench further held that since the letter dated 24.4.1974 was not served on the respondent, there was no material to show that any warning had been issued to the respondent before he was discharged from service. We do not agree with the view taken by the Division Bench. Firstly, even if the letter dated 24.4.1974 was not served on the respondent there is no dispute that the Superintending Engineer's letter dated 18th April, 1974 had been served on him. By that letter warning as contemplated by Regulation No. 113 had been issued to the respondent. Therefore even if the letter dated 24.4.1974 was not served on the respondent the order of discharge as contemplated by Regulation No. 113 is sustainable in law. But even otherwise, the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent appeal. Perusal of the averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of the counter-affidavit filed in reply to the petitioner's writ petition before the learned Single Judge shows that the Board had categorically pleaded that the respondent was informed by letter dated 24.4.1974 that his representation to postpone his transfer was rejected and he should obey the order of transfer. It was further pleaded that the respond- ent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent denied the afore- said allegations and asserted that the letter was not ten- dered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his plead- ing. In this view, we are of the opinion that the Division Bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to dis- charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au- thorities was wrong and incorrect. Mere denial made by ,the respondent in the circumstances of the case was not suffi- cient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect. In view of the above discussion, we therefore hold that the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No. 113. We further hold that before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci- plinary action should not be taken against him. The respond- ent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from serv- ice in accordance with the Service Regulation No. 113. The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge. We, accordingly, allow the appeal, set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition. There would be no order as to costs. The respondent has been paid a sum of Rs. 1,04,170 towards salary under the interim orders of this Court. Now, since the order of discharge is held to be valid the amount paid to the re- spondent is liable to be recovered from him, but having regard to the facts and circumstances of the case and the hardship which could be caused to the respondent, we direct the appellant not to recover the amount already paid to the respondent. S.K.A. Appeal al- lowed.


PETITIONER: LAKSHMANA NADAR AND OTHERS Vs. RESPONDENT: R. RAMIER. DATE OF JUDGMENT: 14/04/1953 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN CITATION: 1953 AIR 304 1953 SCR 848 ACT: Hindu law-Will--Bequest to wife for her lifetime and to daughter absolutely after wife's lifetime-Estate taken by wife-Whether ordinary life estate or Hindu widow's estate -Daughter's estate-Whether vested-Death of daughter before widow, effect of -Construction of Hindu will-Guiding principles. HEADNOTE: A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: " After my life- time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death. The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings. Ram Bahadur v. Joger Nath Prasad (3 Pat. L.J. 199), Pavani Subbamma v. Arumala Rama Naidu ([1937] 1 M.L.J. 268), Nathu Rain Mahajan v. Ganga Bai ([1938] 2 M.L.J. 562), Vasanta Rao Ammennamma v. Venkata Kodanda Rao ([1940] 1 M.L.J. 188), Maharaja of Kolhapur v. Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool v. Shewakram (2 I.A. 7), Ratna Chetty v. Narayana swami Chetty (26 M.L.J. 616), Mst. Bhagwati Devi v. Choudry Bholonath Thakur (2 I.A. 256) and Lallu v. Jagmohan (I.L.R. 22 Bom. 409) referred to. Judgment of the Madras High Court affirmed. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar JJ.) in Appeal No. 635 of 1946 arising, out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945. K. S. Krishnaswamy Iyengar (S. Ramachandra with him) for the appellants. K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent. 1953. April 14. The Judgment of the Court was delivered by MAHAJAN J.-- One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunelveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi. Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he executed a will on 16th November, 1924, the construction of which is in controversy in this appeal. By this will he gave the following directions -- "After my lifetime, you, the aforesaid Ranganayaki Amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to Chinnanmal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed". Ranganayaki entered into possession of the properties on the death of her husband. On 21st February, 1928, she settled the maintenance claim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of Rs. 240 per annum. Ramalakshmi died on 25th April, 1938 during the lifetime of the widow. None of her children survived her. On the 24th July, 1945, the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500. On the 18th September, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was issued by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband's estate, In spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. The plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshmi obtained a vested interest in the suit -properties under the will of her father and plaintiff was thus entitled to maintain the suit. The defendants pleaded that the plaintiff had no title to maintain the suit, that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff. The main issue in the suit was whether- the widow took under the will an absolute estate or an estate like the Hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. The subordinate judge held that the widow took under the will a limited life, interest, and not an absolute estate or even a widow's estate under Hindu law, and that the daughter got thereunder a vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not enure beyond her lifetime. The question as to the validity of the alienations was left undetermined. The unsuccessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras. During the pendency of the appeal the widow died on 14th February, 1948. The High Court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. Leave to appeal to the Supreme Court was granted and the appeal was admitted on the 27th November, 1951. The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the donee or the persons taking under it are capable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testator's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widow's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. The widow in such a case takes as a demisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair. Considering the will in the light of these principles,it seems to us that Lakshminarayan Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers. The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. The extent of the grant, so far as the properties mentioned in the schedule are concerned, to the daughter and the widow is the same. Just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. They could not enjoy the same properties in the manner directed if the widow had a full Hindu widow's estate and had the power for any purpose to dispose of them and did so. If that was the intention, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. The widow cannot be held to have been given a full Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her. It was argued that such a power was implicit within the acts she was authorized to do, that is to say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity arose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained. The properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. Indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of Rs. 3,350 in cash to the daughter-in-law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 years after the death of her husband, excepting one, which she alienated in the year 1937 to raise a sum of Rs. 1,000 in order to buy some land. By this transaction she substituted one property by another. For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes cannot be raised. In our opinion, even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate, this power would fall far short of the powers that a Hindu widow enjoys under Hindu law. Under that law she has the power to alienate the estate for the benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance. She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow's estate in spite of the directions above- mentioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death. It was strenuously argued by Mr. K. S. Krishnaswami Iyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely to be one analogous to a Hindu woman's estate than a life estate a,-, understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. [Vide Sasiman v. Shib Narain (1)]. However, out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur v. Jager Nath Prasad (2 ). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece S. would get a bequest of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece. The remainder was disposed of in the following words: - "If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two-thirds of the movable property will belong to the son and one-third to the daughter. But as regards the immovable property none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after payment of rent". This will was construed as conveying an absolute estate to the son and the daughter of the niece. It was remarked that in spite of an. express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491. A. 2 5. (2) 3 Pat. L. J. 199. alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property. The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow',-, estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow's estate had been given. The fact that the gift over was a contin- gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate. There is no such indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1). Under the will there dealt with, the widow S, was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son respectively. A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by S. The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire Properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. This decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say " In deference to the view taken in Maharaja of Kolhapur v. sundaram Iyer (2), it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law (1) (1937) 1 M.L.J. 268. (2) (1925) I.L.R. 48 Mad. 1. sense of the term." We do not understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu woman's estate not with standing the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan v. Gangayabai(1) were next cited:-- As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by -the Hindu law in the case of a widow, be in possession of the estate." Such casual observation made in respect of a will couched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma v. Venkata Kodanda Rao Pantalu(2), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows:---- "Out, of the aforestated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter". The will was construed as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take- under the law of inheritance, that is a limited estate analogous to a widow's estate. At page 193 of the report it was observed as follows :---- "The question therefore arises, did he intend to confer only a life estate or a daughter's estate ? It seems (1) (1938) 2 M.L.J. 562. (2) (1940) M.L.J. 188, to us that he meant to give a daughter's estate rather than a life estate. He omits the words 'during her life' with reference to the disposition in favour of the daughter. The words 'pass to my daughter' would rather indicate that in the ordinary course of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons. Either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest". This line of reasoning which appealed to the learned judges is not of much he]-) to us here as the language hi this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words " till your lifetime." Reliance was next placed on Maharaja of Kolhapur v. Sundaram Iyer (1). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that " the widows of Sivaji Raja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool v. Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) (1925) I.L.R. 48 Mad. 1. (2) (1874-75) 2 I.A. 7. a testamentary character declared his daughter who had two daughters, as his heir, and after her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the 'testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following observations were emphasized as relevant to this enquiry :- " It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow. In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate." These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow's estate and no more. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty v. Narayana swami Chetty(1). There the testator made a will in favour of his wife providing, inter alia, "all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chetty (nephew) and my wife, should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, Muthu Arunachala Chetty himself would enjoy the properties which remain after the death of the widow." It was held upon the construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi v. Chowdry Bholonath Thakur(2). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms (1) (19I4) 26 M.L.J. 616. (2) (1874-75) 2 I.A 256. "the remaining 'milkiut' and 'minhai ' 'estates, together with the amount of ready money, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son)." The subordinate judge held that Chunderbutti got an estate for life with the power to appropriate profits and Girdhari got a vested remainder on her death. The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privy Council on this will held as follows " Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderbutti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it according to its plain meaning." These observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. This will was couched in different language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiuit estates and the slaves. Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan(1). The will there ran as follows:- " When I die, my wife named Suraj' is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that." It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testator's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) (1898) I.L.R. 22 Bom. 409. negatived the view that the testator intended to confer upon his widow a Hindu widow's estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow's estate. Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the appellant: M. S. K. Aiyangar. Agent for the respondent Ganpat Rai.