ivil Appeal No 251 of 1954
Appeal from the judgment and decree dated April 22 1952 of the Punjab High Court in Civil Regular First Appeal No 1E of 1947 arising out of the judgment and decree dated July 1 1947 of the Court of SubJudge Ambala in Suit No 239 of 1946
Tarachand Brijmohan Lal for the appellant
Hardayal Hardy for respondent No 1 1958
May 1
This is a plaintiff s appeal against the judgment and decree passed on April 22 1952 by a Division Bench of the Punjab High Court reversing the decree passed on July 1 1947 by the First Class Subordinate Judge Ambala in favour of the plaintiff and dismissing the plaintiff s Suit No 239 of 1946
The appeal has been preferred on the strength of a certificate granted by the Division Bench on December 19 1952
The facts material for the purpose of this appeal may now be shortly stated One Lala Beni Pershad died in the year 1910 leaving him surviving his widow Mst
Daropadi defendant respondent No 2 and  two sons by her namely Gokul Chand defendant respondent No 1 and Raghunath Das plaintiff appellant who was then a minor
Lala Beni Pershad left considerable moveable properties including many G P Notes and also various immoveable properties including agricul tural land gardens and houses
After his death the family continued to be joint until disputes and
differences arose between the two brothers in 1934
Eventually oil November 12 1934 the two brothers executed an agreement referring their disputes relating to the partition of the family properties to the arbitration of Lala Ramji Das who was a common relation
813 It is alleged that the respondent Gokul Chand had disposed of part of the  F P Notes and that at the date of the reference to arbitration G P Notes of the value of Rs 26500 only were held by Gokul Chand as the Karta of the family
On June 21 1936 the arbitrator made an award which was signed by both the brothers statedly ill token of their acceptance thereof
The award was registered on July 28 1936
By that award the arbitrator divided the imoveable properties and shops as therein mentioned
As regards the G P Notes the arbitrator directed and awarded that out of the G P Notes of the value of Rs 26500 which then stood in the name of Gokul Chand G P Notes of the value of Rs 13300 should be entered into the names of Gokul Chand and Mst
Daropadi and the remaining Notes of the value of Rs 13200 should be endorsed in the names of Raghunatb Das and Mst
Daropadi and that till her death Mst
Daropadi should alone be entitled to the interest on the entire G P Notes of the value of Its 26500 and that after her death Gokul Chand would be the owner of the X P Notes of the value of Rs 13300 and Raghunath Das of G P Notes of the value of Rs 13200
The arbitrator further directed Gokul Chand to pay to Raghunath Das a sum of Rs 20000 in four several instalments together with interest thereon as mentioned therein
On August 31 1936 Gokul Chand applied to the District Judge Ambala under paragraph 20 of Schedule 11 to the Code of Civil Procedure for filing the award
During the pendency of those Proceedings the two brothers entered into a compromise modifying certain terms of the award which are not material for the purpose of the present appeal
By an order made on November 18 1936 the District Judge directed the award as modified by the compromise to be filed and passed a decree in accordance with the terms of the award thus modified
On November 15 1939 Raghunath Das made an application to the court of the District judge for execution of the decree
The District Judge transferred the application to the court of the Subordinate Judge 814 who directed notice of that application to be issued to Gokul Chand
Gokul Chand filed objection to the execution mainly on the ground that the decree had been passed without jurisdiction in that the District Judge had no power to pass a decree for partition of agricultural lands
The Subordinate Judge on December 23 1942 accepted Gokul Chand s plea and dismissed the execution application
On appeal by Raghunath Das to the High Court a learned Single Judge on April 5 1944 accepted the appeal but on Letters Patent Appeal filed by Gokul Chand the Division Bench on March 15 1945 reversed the order of the Single Judge and restored the order of dismissal passed by the Subordinate Judge
Having failed to obtain the relief granted to him by the decree passed upon the award on the ground of defect of jurisdiction in the court which passed the decree and consequently for want of jurisdiction in the executing court Raghunath Das on August 21 1945 instituted Suit No 80 of 1945 against Gokul Chand for the recovery of Rs 7310 11 3 being the balance with interest remaining due to him out of the said sum of Rs 20000 awarded in his favour
Gokul Chand raised a number of pleas but eventually all his pleas were negatived and the senior Subordinate Judge Ambala by his judgment pronounced on December 22 1945 decreed the suit in favour of Raghunath Das
Gokul Chand did not file any appeal therefrom and consequently that decree became final and binding as between the parties thereto
On June 5 1946 Raghunath Das filed in the court of the Senior Subordinate Judge Ambala a suit being Suit No 239 of 1946 out of which the present appeal has arisen
In this suit Raghunath Das claimed that Gokul Chand be ordered to transfer G P Notes of the value of Rs 13200 out of the G P Notes of the value of Rs 26500 to Raghunath Das and Mst
Daropadi by means of endorsement or some other legal way to get them entered into the Government registers and to make them over to Raghunath Das the plaintiff
Particulars of the numbers the year of issue the face value and the interest payable on all the said G P 815 Notes were set out in the prayer
There was an alternative prayer that Gokul Chand be ordered to pay Rs 13200 to the plaintiff
Gokul Chand filed his written statement taking a number of pleas in bar to the suit
Not less than 12 issues were raised out of which only issues Nos 2 and 3 appear from the judgment of the Subordinate Judge to have been seriously pressed
Those two issues were as follows  2 Is the suit within time  and 3 Is the suit barred by Order 2 Rule 2 of the Civil Procedure Code The Subordinate Judge decided both the issues in favour of the plaintiff
He held that article 49 of the Indian Limitation Act had no application to the facts of this case and that there being no other specific Article applicable the suit was governed by the residuary article 120
The learned Subordinate Judge also took the view that the period from November 15 1939 to March 15 1945 spent in the execution proceedings should be excluded under section 14 of the Indian Limitation Act in computing the period of limitation under article 120
The learned Subordinate Judge also held that the cause of action in the earlier suit for the recovery of the sum of Rs 7310 11 3 was not the same as the cause of action in the present suit and therefore the present suit was not barred under 0 2 r 2 of the Code of Civil Procedure
The learned Subordinate Judge accordingly decreed the suit in favour of Raghunath Das
Gokul Chand appealed to the High Court
The appeal came up for hearing before a Division Bench of the Punjab High Court
Only two points were pressed in support of the appeal namely 1 whether the suit was barred by time and 2 whether the suit was barred under 0 2 r 2 of the Code of Civil Procedure
Learned counsel appearing for Gokul Chand urged that the suit was one for the recovery of  other specific moveable property  that is to say specific moveable property other than those falling within Arta
48 48A and 48B of the Indian Limitation Act and was accordingly governed by article 49
Article 49
provides three years  period of limitation I04 816 for a suit for  other specific moveable property or for compensation for wrongful taking or injuring or wrongfully detaining the same  and this period of three years begins to run from  when the property is wrongfully taken or injured or when the detainer s possession becomes unlawful 
In the opinion of the High Court the suit was for the recovery of specific Government promissory notes and this according to the High Court was plain from the perusal of para
18 of the plaint which set out the reliefs claimed by the plaintiff in the suit
The reference to the numbers value and the year of issue of G P Notes and the rates of interest carried by them appeared to the High Court to be decisive on this point
The High Court held that the suit was governed by article 49 and that as the plaintiff would be out of time even if the period between November 15 1939 and March 15 1945 was excluded the High Court did not think it necessary to consider the question of the applicability of section 14 of the Indian Limitation Act
As its finding on the issue of limitation was sufficient to dispose of the suit the High Court did not discuss the other issue founded on 0 2 r 2 of the Code of Civil Procedure but allowed the appeal and dismissed the suit as barred by limitation
We are unable to accept the decision of the High Court as correct
The High Court overlooked the fact that so far as the G P Notes were concerned the decree upon the award only declared the rights of the parties
Under the decree Raghunath Das was entitled to have G P Notes of the value of Rs 13200 endorsed in the names of himself and Mst
Daropadi out of the G P Notes of the value of Rs 26500
The award or the decree thereon did not actually divide the G P Notes by specifying which particular G P Notes were to be endorsed in the names of Gokul Chand and Mst
Daropadi or which of them were to be endorsed in the names of Raghunath Das and his mother
Until the G P Notes were actually divided either by consent of parties or by the decree of the court neither of the brothers could claim any particular piece of G P Notes as his separate property or 817 ask for delivery of any particular C P Notes in specie
Gokul Chand not being agreeable to come to an amicable division of the G P Notes Raghunath Das had perforce to seek the assistance of the court and pray that the entire lot of C P Notes of the value of Rs 26500 be divided by or under the directions of the court into two lots and one lot making up the value of Rs 13200 be endorsed in favour of him Raghunath Das and his mother by or on behalf of Gokul Chand and then delivered to him the plaintiff
He could not in his plaint claim that particular pieces of G P Notes making up the value of Rs 13200 be delivered to him in specie
This being the true position as we conceive it Raghunath Das s suit cannot possibly be regarded as a suit for a  specific moveable property 
That expression is apt only to cover a suit wherein the plaintiff can allege that he is entitled to certain specific moveable property andor of which he is presently entitled to possession in specie and which the defendant has wrongfully taken from him andor is illegally withholding from him
That is not the position here
It should be remembered that the two brothers were entitled to the G P Notes of the value of Rs 26500 originally as joint coparceners and thereafter when the decree upon the award had been passed as tenants in common
Until actual partition by consent of the parties or by court Gokul Chand who held the custody of the G P Notes could not be said to have taken them wrongfully from Raghunath Das and his possession of them could not be said to be or to have become unlawful
These considerations clearly distinguish this case from the case of Gopal Chandra Bose vs Surendra Nath Dutt 1 on which the High Court relied because in that case the defendant had no right to or interest in the G P Notes in question and had no right to retain possession thereof
Therefore to the present situation the terminus a quo specified in the third column of article 49 can have no application
It is now well established that a suit by an heir against other heirs to recover his share of the moveable estate of a deceased person is not one for 1 1908 XII C W N 1010 818 specific moveable property wrongfully taken such as is contemplated by Art 49 but is governed by article 120
See Mohomed Riasat Ali vs Mussumat Hasin Banu 1
The only difference between the facts of that case and those of the present case is that here the rights of the parties had been declared by the decree upon the award but that circumstance does not appear to us to make any material difference in the application of the principle laid down by the Judicial Committee
The substance of the plaintiff s claims in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated
In short such a suit is nothing but a suit for partition or division of the moveable properties held jointly or as tenants in common by the parties and there being no specific Article applicable to such a suit it must be governed by article 120
The period of limitation fixed by article 120 is six years from the date when the right to sue accrues
In order therefore to be within the period of limitation the plaintiff claims to exclude the period November 15 1939 to March 15 1945 spent in the execution proceedings
Section 14 1 of the Indian Limitation Act runs as follows  14 1 In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the defendant shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which for defect of jurisdiction or other cause of a like nature is unable to entertain it
 The respondent contends that the above section has no application to the facts of his case
We do not think that such contention is well founded
The execution proceedings initiated by Raghunath Das were certainly civil proceedings and there can be no doubt that he prosecuted such civil proceedings with due diligence and good faith for lie was obviously i 1893 L R 20 I A 155
819 anxious to have his share of the G P Notes separately allocated to him
He lost in the execution court but went on appeal to the High Court where he succeeded before a Single Judge but eventually he failed before the Division Bench which reversed the order the Single Judge had passed in his favour
Therefore there can be no question of want of due diligence and good faith on the part of Raghunath Das
In the next place the section excludes the time spent both in a court of first instance and in a court of appeal
Therefore other conditions being satisfied the entire period mentioned above would be liable to be excluded
The only questions that remain are 1 whether the proceedings were founded upon the same cause of action and 2 whether he prosecuted the proceedings in good faith in a court which for defect of jurisdiction as unable to entertain it
The execution proceedings were founded upon his claim to enforce his rights declared under the decree upon the award
The cause of action in the present suit is also for enforcement of the same right the only difference being that in the former proceedings Raghunath Das was seeking to enforce his rights in execution and in the present instance he is seeking to enforce the same rights in a regular suit
There is nothing new that he is asking for in the present suit
That he prosecuted the execution proceedings in the Subordinate Court as well as in the High Court in good faith cannot be denied for the Single Judge of the High Court actually upheld his contention that the court had jurisdiction to entertain his application
The execution proceedings failed before the Division Bench on no other ground than that the executing court had no jurisdiction to entertain the application because the decree sought to be executed was a nullity having been passed by a court which had no jurisdiction to pass it
Therefore the defect of jurisdiction in the court that passed the decree became as it were attached to the decree itself and the executing court could not entertain the execution proceeding on account of the same defect
The defect of jurisdiction in the executing court was finally determined when 820 the Division Bench reversed the decision of the Single Judge who had entertained the execution proceeding
In our opinion Raghunath Das is entitled to the benefit of section 14 1 of the Indian Limitation Act and the period here in before mentioned being excluded there can be no doubt that the suit was filed well within the prescribed period of limitation and the judgment of the Division Bench cannot be sustained
In the view it took on the question of limitation the Division Bench did not consider it necessary to go into or give any decision on the other issue namely as to whether the suit was barred by 0 2 r 2
The suit should therefore go back to the High Court for determination of that issue
The result therefore is that we accept the appeal set aside the judgment and decree of the High Court and remand the case back to the High Court for a decision on issue No 3 only
The appellant will get the costs of this appeal as well as the costs of the hearing in the High Court resulting in the decree under appeal and the general costs of the appeal and the costs of further hearing on remand will be dealt with by the High Court
Appeal allowed
Case remanded


Summary:
The assessee appellant did not file its income tax returns under the Income Tax Act 1961 for the assessment years 1965 66 1966 67 within the statutory period
It was only after notices under section 1392 of the Act were served on the assessee the returns were filed
In the said circum stances the Income Tax Officer initiated penalty proceedings against the assessee under section 2711a of the Act for the two assessment years and imposed penalties
The explanation of the assessee that he was under the bona fide belief that he had no assessable income and had therefore not filed the returns earlier was not accepted by the Income tax Officer
The Appellate Assistant Commissioner dismissed the appeal but in second appeal the Appellate Tribunal allowed the appeal holding that the Income Tax Officer had failed to bring on record any material to show that the explanation of the assessee tendered before him in regard t9 the delay should not be accepted and that as the element of mens rea was required to be proved and had not been proved the penalties were liable to be cancelled
The Appellate Tribunal at the instance of the Revenue referred the question to the High Court and a Full Bench of the High Court took the view that mens rea need not be established before penalty is imposed under section 2711a of the Act and the Appellate Tribunal was therefore not justi fied in cancelling the penalties levied for the two assess ment years
On the question whether the element of mens tea is a mandatory requirement before a penalty can be imposed under section 2711 a of 1001 the Income Tax Act 1961
Dismissing the appeal the Court
HELD 1
A penalty may be imposed under section 2711a if the Income Tax Officer is satisfied that any person has without reasonable cause failed to furnish the return of total income
while section 276C provides that if a person wilfully fails to furnish in due time the return of income required under section 1391 he shall be punishable with rigorous imprisonment which may extend to one year or with fine
It is therefore clear that in the former case what was intended was a civil obligation while in the latter what is imposed is a criminal sentence
1003E F 2
There can be no dispute that having regard to the provisions of section 276C which speaks of wilful failure on the part of defaulter and taking into consideration the nature of the penalty which is punitive no sentence can be im posed under that provision unless the element of mens rea is established
1003G H 3
The creation of an offence by Statute proceeds on the assumption that society suffers injury by the act or omis sion of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence
1004A B 4
Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred
1004B C 5
In a proceeding under section 2711a it seems that the intention of the legislature is to emphasise the fact of loss of
Revenue and to provide a remedy for such loss although no doubt an element of coercion is present
in the penalty
In this connection the terms in which the penalty falls to be measured is significant
1004B Corpus Juris Secundum volume 85 page 580 para 1023 referred to
There is nothing in section 2711a which requires that mens rea must be proved before penalty can be levied under that provision
1004C