Case: Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram And Others

This is an appeal against a decision of the Nagpur Election "Trbunal. The contest before the tribunal was about two seats in the Bhandara Parliamentary Constituency. The elections were held on five days in December, 1951, and January,Thirteen candidates filed nomination papers, among them the petitioner. Of these, six contested the seat reserved for the Scheduled Castes. One of these was Gangaram Thaware who has sinceScheduled Caste in question is the Mahar caste. Objection was taken to Thawares nomination for the reserved seat on the ground that he was not a Mahar. It is admitted that he was born a Mahar, but later in life he joined the Mabanubhava Panth. This, according to the appellant, is a sect which does not believe in caste, and alternatively that it forms a separate caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste The objection succeeded and his nomination wasnomination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner. That left six candidates of whom three were eligible for the reservedtwo who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, nor the general seat. Jasanis election was challenged on the ground that he was subject to the disqualifications set out in section 7 (d) of the Representation of the People Act (Act XLIII of 1951) as he was interested in a contract for the supply of goods to the CentralElection Tribunal held that the rejection of Gangaram Thawares nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a contract with the Central Government, so he was disqualified. Accordingly it set aside the whole election

Reasoning: We do not intend to analyse these letters in detail. here. It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales. This, in our opinion, constituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the commission on all orders placed and accepted in -accordance with the arrangement ; and in fact the Canteen Stores did obtain a sum of Rs. 7, 500 in satisfaction of a claim of this kind. This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and that it was a continuing one. In our opinion, it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive. But except for this, the; letters merely set out the terms on which the parties were ready to do business with each other if and when orders were placed and executed. As soon as an order was placed and accepted a contract arose. It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also, each separate order and acceptance constituted a different and distinctobvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh consignments for sale on the " pay as we sell " basis. We say "obvious" because the manufacturers could use the stale tobacco by re-curing and blending it, or could use it for other purposes provided it was not too far gone. The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka & Companys bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months. Moolji Sicka & Company were then to replace them with fresh stocks which would be paid for when sold. This was agreed to in the main but the point at which they were at issue was the six months. Mooli Sicka & -Company proposed three months while the Canteen Stores wanted six months. We think the argument used in the letter of 31st July, 1951, that " the result will be obvious. Your sales will be lower " can only have reference to an arrangement of this kind, otherwise no question of the sales being lower could arise. In the case of an outright sale, the sale would be complete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them. The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case, it certainly includes this system.Moolji Sicka & Companys reply is dated 9th August, 1951. They say-"We are in receipt of your letter No. 7B/29/-17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months. We are sure this will now enable you to keep adequate stocks of our bidis. Awaiting your esteemed orders. "This is an acceptance of the interpretation of the " guarantee period " as given by the Canteen Stores in their letter of 31st July, 1951. The words "now" and "adequate" relate to the dispute which started on 24th April, 1951, when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots. The , subsequent correspondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides. It all ended by Moolji Sicka & Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick& & Company accepted- the " Consignment System " on 9th August, 1951. That imported a "pay as we sell" arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the "transition period " the Direct Supply System was also to continue. That meant that there would be two systems in force for a time in certain depots: the "Consignment System " regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the " Direct Supply System " till such time as the depots were stocked. The third system of " Outright Purchase " was limited for the time being to the Pathankot and Srinagarare unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent aseven if all that be disregarded and it be assumed that Moolji Sicka & Company had fully performed their part of the contract by placing the goods on rails before 15th November, 1951, we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fullycan be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of thethey were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply ofare of opinion that it continues in being till it is fully discharged by performance on both sides.It was contended, on the strength. of certain observations in some English cases, that the moment a contract is fully executed on one side and all that remains is to receive payment from the other, then the contract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract, the decision would have to rest on that basis. In any case, as we are not bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a contract continues in being till it is fully discharged by bothneed not go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these contracts which Moolji Sicka & Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucialour opinion, this is a type of contract to which section 236(3) of the Indian Contract Act wouldfeel that some reasonable meaning must be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility. If not, its interests are safeguarded as we think the Constitution intended that they should be.In the present case, there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that section 230(3) of the Indian Contract Act is designed to meet. It would, in our opinion, be disastrous, to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effect- ed by a ponderous legal document couched in a particular form. it may be that Government will not be bound by the contract in that case, but that -is a very different thing from saying that the contracts as such are void and of no effect. It only means "that the principal cannot be sued-; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see The Collector of Masulipatam v. Cavaly Venkata Narrainapah(8 M.I.A. 529 at 554.). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been, sued on them by reason of articleour opinion, the Election Tribunal was-right in disqualifying Chatturbhujwe are not really concerned with their theology. What we have to determine are the social and political consequences of such conversions and that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.Conversion brings many complexities in its train, for it imports a complex composite composed of many ingredients. Religious beliefs, spiritual experience and emotion and intellectual conviction mingle with more material considerations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. Looked at from the secular point of view, there are three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the newour opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu convert to Christianity apply here: not, of course, the details of the decision but the broad underlyingonly modification here is that it is not only his choice which must be taken into account but also the views of the body whose religious tenets he has renounced, because here the right we are considering is the right of the old body, the right conferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broadneed not determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. Now no witness has spoken of any outcasting, neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community has ever been outcasted from the Mahars for that reason; and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non-Mahanubhavas belonging to their own caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram (P. W. 4) and Haridas (P. W. 5) say that a Mahar convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these, Sadasheo (P. W. 3) and Haridas (P. W. 5) areis no evidence to rebut this. The witnesses on the other side take refuge in theory and, when confronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are not real Mahanubhavas. Harendra ( R.W. 1) is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does not lead a worldly life he does not know whether converts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before conversion.Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case, his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did not arise as a man lost his caste onthis evidence, and after considering the historical material placed before us, we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the converts caste status, at any rate, , so far as the householder section of the Panth is concerned.We have read it and find nothing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham(9 M.I.A. 199. 199.), we hold that despite his conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us.