dedol-hf/india-case-legal-rag huggingface dataset:
v. Jackson( 1 ), which was a case under section 1 (3) of the
Municipal  Elections Act     and 39 Vic., c. 40)  which  re-
quired  delivery of the nomination paper" by  the  candidate
himself  or his proposer or seconder to the Town  Clerk"  it
was  held  that this requirement was not  satisfied  by  the
delivery      it  by  an  agent.  In  The  Queen  v.  Mansel
Jones(2), it was held that a person charged with any corrupt
or illegal practice at  a  municipal election who was  enti-
tled, under section 38 of the Corrupt  and Illegal Practices
Prevention Act, 1883, to be      "heard by himself" was  not
entitled to be heard by   his counsel or solicitor.   In re-
Prince  Blucher(9), the English Court of Appeal held that  a
proposal of composition
  (1)  (1876) L.R. 1 C.P.D. 683          (2) L.R. 23  Q.B.D.
29
                    (3) L.R. (1931) 2 Ch. 70
57
448
signed by the solicitors of a debtor, who was, by reason  of
his serious illness, unable to sign it, did not comply  with
the requirements of section 16 (1) of the Bank ruptcy'  Act,
1914,  which required "a proposal in writing signed by him."
The  Court of Appeal applied the principles of the  decision
in Hyde v. Johnson(1) and in In re Whitley Partners Ltd.(2).
In Luchman Bukshi Roy v. Runjeet Ram Panday(3), a Full Bench
of the Calcutta High Court held that an acknowledgment by  a
Mooklear  was not sufficient for the purposes of  section  1
(5)  of the Limitation Act (XIV of 1859) which  required  an
acknowledgment signed by the mortgagee.  Rankin C.J. held in
Japan  Cotton  Trading  Co. Ltd. v.  Jajodia  Cotton  Mills,
Ltd.(4) that a demand letter signed by the solicitors of the
petitioning  creditor was not a notice under section 163  of
the  Indian Companies Act which as it then stood required  a
demand  "under his hand."  A similar view was taken  by  the
Rangoon  High  Court  in Manjeebhai Khataw &  Co.  v.  Jamal
Brothers  & Co. Ltd.(5) and M.A. Kureshi v. Argus  Footwear,
Ltd. (6).  See also Wilson v. Wallani ( 7 ).  In  C.T.A.C.T.
Nachiappa  Chettyar v. Secretary of State for  India(8),  it
was  held that the registration of a firm on an  application
signed by the agent of the partners was ultra vires inasmuch
as  the rules framed under section 59 of the Income-tax  Act
required an application signed by at least one of the  part-
ners.   In Commissioner of Income-tax, Madras v.  Subba  Rao
(9),  it was held that by reason of the  word.  "personally"
occurring  in  rule 6 of the Income-tax Rules  framed  under
section  59 of the Income-tax Act, 1922, a  duly  authorised
agent  of a partner was precluded from signing on behalf  of
the partner an application under section 26-A of the Act for
registration of the firm.  In all these cases the common law
rule  was  not  applied, evidently  because  the  particular
statutes  were  held to indicate that the intention  was  to
exclude that rule.  This intention Was gathered from the use
of the
(1) (1836) 2 Bing. (N.C) 776          (2) (1886) L.R.  32
Ch. D. 337
   (3)  (1873) 20 W.R-375                 (4) (1926)  I.L.R.
54 Cal.
   (5) I.L.R. 5 Rang. 483                (6) I.L.R. 9  Rang.
323
   (7)  (1880) L.R. 5 Ex. D. 155          (8) (1933)  I.L.R.
11 Rang. 380
(9) I.L.R. (1947) Mad. 167
   449
word "himself" or "by him" or "under his hand" or "personal-
ly."  It is needless to say that such an intention may  also
be  gathered  from the nature of the particular  statute  or
inferred  from the different provisions of the  statute  and
the  rules framed thereunder. As already stated,  there  are
many indications in the Bengal Agricultural Income-tax  Act,
1944, and the rules made thereunder evidencing an  intention
to  exclude the common law rule in the matter of the  signa-
ture of the assessee, appellant or applicant on the  return,
appeal or application.
    The High Court referred to the case of' In the matter of
Commissioner of Income-tax, C.P. & U.P. ( 1 ) and sought  to
find  support for its views from the Circumstance  that  the
Court  in  that case rejected the return not on  the  ground
that it was bad because it was signed by an agent but on the
ground  that  the power of attorney did  not  authorise  the
agent to sign it.  It is quite clear that the Court in  that
case found it easier to decide the case on the latter ground
than to enter upon a discussion of the first ground.  It  is
impossible to read that case as an authority for the  propo-
sition  that  the signature of an agent was  permissible  at
all.  The Full Bench decision of the Allahabad High Court in
Deo  Narain  Rai v. Kukur Bind('2) referred to in  the  High
Court judgment before us does not appear to militate against
the  views expressed above. On a construction of section  59
of  the Transfer of Property Act it was held that there  was
nothing in the Act to exclude the application of the  common
law  rule. The only provision of that Act on which  reliance
was -placed in establishing such exclusion was section  123.
Stanley  C.J.   pointed out that the language  of  the  last
mentioned  section  was  elliptical  and  was  not  accurate
draughtsmanship and, therefore, it could not be relied  upon
in  construing section 59. The judgment of Banerjee J.  also
makes  it clear that he found nothing in the Act to  exclude
signature  by an agent and that the words "on behalf of"  in
section  123  were surplusage.  It is quite true  that  when
signature  by  an agent is permissible, the writing  of  the
name of
(1)  A.I.R. (1935) Oudh. 305           (2) (1902) I.L.R.  24
All. 319.
450
the  principal by the agent is regarded as the signature  of
the principal himself.  But this result only follows when it
is permissible for the agent to sign the name of the princi-
pal.   If  on a construction of a statute  Signature  by  an
agent is not found permissible then the writing of the  name
of  the principal by the agent however clearly he  may  have
been authorised by the principal cannot possibly be regarded
as  the signature of the principal for the purposes of  that
statute.   If  a statute requires personat  signature  of  a
person,  which  includes a mark, the signature or  the  mark
must  be that     the man himself.  There must  be  physical
contact  between that person and the signature or  the  mark
put on the document.
    The  result, therefore, is that this appeal  must  beac-
cepted  and the question referred to the High Court must  be
answered in the negative.  There will be no order for  costs
against  the  assessee and the appellant  Commissioner  must
bear his own costs throughout.
FAZL ALI J.--I agree.
PATANJAL SASTRI J.--I agree.
MUKHERJEA J.--I agree.
MAHAJAN J.--The question of law referred to the
High Court and answered by it in the affirmative is in these
terms  :--"Whether  in the circumstances of this  case,  the
declaration  in the form of return signed by the  illiterate
assessee by the pen of his son should be treated as properly
signed  and a valid return."  The High Court was not  called
upon  to  answer the question whether an  income-tax  return
could  be  validly  signed by an agent in the  name  of  the
principal; on the other hand, the question as framed assumes
that  the return was signed by the illiterate  assessee  but
that  the  pen affixing the signature was that of  his  son.
The physical act of putting the mark was made by the pen  or
possibly  by the hand of the son who was not the  agent  ap-
pointed  by the father and was not otherwise  authorised  by
him to sign for him.
451
    No  evidence was led and there is nothing whatsoever  on
the  record to establish that this illiterate  assessee  did
not touch the pen or the hand of the son when the  signature
was  affixed  on the return.  No precise definition  of  the
word "signature" is given in the Indian Income-tax Act or in
any  other  law.   In the General Clauses Act  there  is  no
exhaustive definition of the word.  It merely says what  the
word "signature" shall include.  It includes the affixing of
a mark.  In India it is a well known practice that when  the
executant of a document is illiterate he simply touches  the
pen  wherewith someone else signs his name for him.   Refer-
ence in this connection may be made to page 972, para, 1659,
of  Gour  on The Law     Transfer.  The  signature  made  in
these circumstances is personal signature of the  executant.
It is his autograph.  No question of agency arises in such a
situation.  This is what seems to have happened here as  one
can guess from the frame of the question. Be that as it may,
without any enquiry into the circumstances in which the  pen
of  the  son affixed the signature of the  assessee  on  the
return  it  could not be assumed that the son acted  as  the
agent of the father and signed his name  in that   capacity.
In   my  opinion the discussion of the question  whether  an
agent  can  sign a return for an assessee was   outside  the
scope  of the question which the High Court was called  upon
to answer.  The answer given in my view was a correct one.
    After  considerable thought I am disinclined to  reverse
the decision of the High Court by placing an  interpretation
on  the  question  which it does not bear.  In  an  ex-parte
hearing we had not the advantage of hearing any arguments in
support of the view taken by the High Court as the  respond-
ent did not appear. It is unnecessary to express any opinion
on the question whether an agent can sign for the  principal
a  form  of return under the Indian Income-tax Act  as  that
enquiry  is outside the scope of the  question  referred  to
the High Court as already pointed out.
   In  the  absence of any material to the  contrary  I  am
satisfied that the assessee  signed  the  return
58
452
personally.  If the Income-tax Officer felt that the  asses-
see  had not touched the pen or the hand of the  person  who
put  the signature on the return he should have called  upon
the assessee to appear before him and ascertain from him the
circumstances in which the son's pen was used for the signa-
ture.  In  the matter of Commissioner of Income-tax, C.P.  &
U.P.(1), it was observed that it is the duty of the  Income-
tax Officer before he accepts a return signed by an agent to
satisfy  himself about the authority of the agent to do  so.
In  my  opinion,  it is equally the duty  of  an  Income-tax
Officer before he rejects a return of an illiterate assessee
or  a person such as a leper, to satisfy himself that  there
was no physical contact of the person with the mark  or  the
signature put on the form.  I agree with my brother Das that
there should be physical  contact between the person and the
signature or the mark put on the document, but I am afraid I
cannot  agree with him that in this case that has  not  hap-
pened.  The question to a certain extent assumes the contact
of the assessee with the pen of his son when it states  that
the illiterate assessee's signature was put with the pen  of
the son.  Be that as it may, that circumstance has not  been
eliminated  in  the  case and that being  so,  the  question
cannot  be  answered in the manner proposed  by  my  learned
brother.  I  am further of the opinion  that  the  Incometax
Officers  should  not  while administering  the  law  create
unnecessary problems for the Courts.  In the present case if
there  was any doubt in the mind of the Income-tax  Officer,
he  should have called upon the illiterate assessee  to  put
his  mark  in his presence on the return and he  should  not
have  acted hastily in assessing him under the penal  provi-
sions of the Act. Ignorant and illiterate people who are not
well versed with the law of income-tax should be dealt  with
more sympathetically than was done here. They should not  be
penalised in the manner that the present assessee was  pena-
lised.  In  the result I would dismiss this  appeal.  Appeal
allowed.
Agent for appellant: P.K. Bose.
(1) A.I.R. 1935 Oudh. 305.
     453
PETITIONER:
DR. BABU RAM SAKSENA
        Vs.
RESPONDENT:
THE STATE
DATE OF JUDGMENT:
05/05/1950
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
CITATION:
 1950 AIR  155            1950 SCR  573
ACT:
              Constitution     of     India--Merger       of
States--Effect--Treaty  of Extradition between British  Gov-
ernment    and   indian   State--Whether   subsists    after
merger--Extradition Act, 1903, ss. 7, 18.--Provision in  Act
for extradition for additional offences--Whether "derogates"
from    Treaty--Extradition    warrant    for     additional
offences--Legality.
HEADNOTE:
   In  1869  the British Government and the State  of  Tonk
entered into a treaty which provided for  the extradition of
offenders  in respect of certain offences specified  therein
called  "heinous  offences," which did not include  the  of-
fences  of  cheating and extortion.  In  1903   the   Indian
Extradition Act was passed which provided for extradition in
respect of cheating and extortion also, but s. 18 of the Act
provided  that nothing contained in the Act "shall  derogate
from  the  provisions of any treaty for the  extradition  of
offenders."  Under the Independence of India Act, 1947,  the
suzerainty of His Majesty over the Indian States lapsed  and
with  it all treaties and agreements in force; but  under  a
"standstill agreement," between the Indian Dominion and  the
States  (including Tonk) all agreements between His  Majesty
and  the  States  were continued,  including  agreements  in
respect  of  extradition.  Tonk acceded to the  Dominion  of
India in 1947 and became a member State of the United  State
of  Rajasthan.   The  appellant was a member  of  the  Uttar
Pradesh  Civil  Service and his services were  lent  to  the
State  of Tonk in 1948. After he had reverted to  the  Uttar
Pradesh  he  was charged with the offences of  cheating  and
extortion  alleged  to have been committed while he  was  in
Tonk  and was arrested under an extradition  warrant  issued
under s. 7 of the Extradition Act, 1903.  He  applied  under
es.  4=91 and 561-A of  the Code of Criminal  Procedure  for
his  release, contending that in view of the  provisions  of
s. 18 of the Extradition  Act and the Treaty of  Extradition
of 1869, his arrest was illegal:
Held   per  KANIA O. J. and PATANJALI SASTRI  J.  (FAZL,
ALI.  J.  concurring),--Even assuming that  the  Extradition
Treaty of 1869 subsisted after the merger of the Tonk State,
by  providing  for extradition for additional  offences  the
Extradition Act of 1903 did not derogate from the provisions
of  the  Treaty  of 5869 or the rights  of  Indian  citizens
thereunder,  and the arrest and surrender of  the  appellant
under s. 7 of the Act was not, therefore, rendered  unlawful
by anything contained in the said Treaty.
574
    Per MUKHERJEA J. (FAZL ALI, MAHAJAN and DAS JJ.  concur-
ring).--The  Extradition Treaty of 1869 was not  capable  of
being  given  effect to in view of the merger  of  the  Tonk
State in the United State of Rajasthan, and, as no  enforce-
able  treaty right existed, s. 18 of the Extradition Act  of
1903  had no application; and inasmuch as the conditions  of
s. 7 of the said Act had been complied with, the warrant  of
arrest issued under s. 7 of the Act was not illegal.
JUDGMENT:
APPELLATE JURISDICTION: Criminal Appeal No. II of 1949.
   Appeal by special leave from the judgment of the  Allaha-
bad  High  Court (Harish Chandra J.)  dated  11th  November,
1949,  in Criminal Miscellaneous Case No. 960 of 1949.   The
facts  of the case and the arguments of counsel are set  out
fully in the judgment.
   Alladi  Krishnaswami Iyer (Alladi Kuppuswami  with  him)
for the appellant.
    M.C. Setalvad, Attorney-General for India (V. N.  Sethi,
with him) for the respondent.
    1950.  May 5.  The judgment of Kania C.J. and  Patanjali
Sastri J. was delivered by
          PATANJALI SASTRI J.--This is an appeal by special
leave from an order of the High Court at Allahabad  dismiss-
ing an application under sections 491 and 561-A of the  Code
of  Criminal Procedure for release of the appellant who  was
arrested  in pursuance of an extradition warrant  issued  by
the  Regional Commissioner of the United State of  Rajasthan
who  is the principal officer representing the Crown in  the
territory of that State.
   The appellant who is a member of the Uttar Pradesh  Civil
Service  was appointed in 1948 to serve what was then  known
as  the  Tonk State in various capacities, and  during  such
service he is alleged to have helped the Nawab in  obtaining
the  sanction of the Government of India to the  payment  of
Rs. 14 lakhs to the Nawab out of the State Treasury for  the
discharge  of  his debts, and to have induced the  Nawab  by
threats  and deception to pay the appellant, in  return  for
such help, sums totalling Rs. 3 lakhs on various dates.   On
these  allegations  the  appellant is  charged  with  having
committed offences under section 383 (Extortion) and
575
section  420 (Cheating) of the Indian Penal Code  which  are
extraditable offences under the Indian Extradition Act, 1903
(hereinafter  referred  to as "the Act").  The  warrant  was
issued  under  section 7 of the Act to the  District  Magis-
trate,  Nainital,  where the appellant  was  residing  after
reverting to the service of the Uttar Pradesh Government, to
arrest  and  deliver him up to the  District  Magistrate  of
Tonk.
    The appellant's case is that the sum of Rs. 3 lakhs  was
paid  to  him by the Nawab to be kept in safe deposit  in  a
bank  for  the  Nawab's use in Delhi, that  no  offence  was
committed and that the amount was returned when demanded  by
the  authorities of the Tonk State.  The warrant was  issued
mala fide on account of enmity. Various technical objections
were  also raised to the validity of the warrant and to  the
jurisdiction  of the Magistrate at Nainital to  take  cogni-
sance of the matter and arrest the appellant. The High Court
overruled  all the objections and dismissed the  application
for the release of the appellant.
    On behalf of the appellant Mr. Alladi Krishnaswami Aiyar
contended that section 7 of the Act under which the  warrant
purports to have been issued had no application to the  case
and  that the entire proceedings before the Magistrate  were
illegal  and  without jurisdiction and  should  be  quashed.
Learned  counsel,  relying on section 18 of  the  Act  which
provides that nothing in Chapter III (which contains section
7) shall "derogate from the provisions of any treaty for the
extradition of offenders," submitted that the treaty entered
into  between the British Government and the Tonk  State  on
the  28th January, 1869, although declared by section  7  of
the  Indian Independence Act, 1947, to have lapsed  as  from
the 15th August, 1947, was continued in force by the "Stand-
still Agreement" entered into on the 8th August, 1947,  that
that  treaty  exclusively governed all matters  relating  to
extradition between the two States, and that, inasmuch as it
did  not cover the offences now charged against  the  appel-
lant,  no extradition of the appellant could be demanded  or
ordered.
576
    The  Attorney-General appearing for the  Government  ad-
vanced three lines of argument in answer to that contention.
In  the first place, the standstill agreement  entered  into
with  the  various Indian States were purely  temporary  ar-
rangements  designed  to maintain  the status  quo  ante  in
respect of certain administrative matters of common  concern
pending  the  accession of those States to the  Dominion  of
India, and they were superseded by the Instruments of Acces-
sion  executed by the Rulers of those States.   Tonk  having
acceded to the Dominion on the 16th August, 1947, the stand-
still agreement relied on by the appellant must be taken  to
have lapsed as from that date.  Secondly, the treaty was  no
longer  subsisting and its execution became  impossible,  as
the  Tonk State ceased to exist politically and such  sover-
eignty as it possessed was extinguished, when it  covenanted
with  certain  other  States, with the  concurrence  of  the
Indian Government "to unite and integrate their  territories
in  one  State,  with a common  executive,  legislature  and
judiciary,  by the name of the United State  of  Rajasthan,"
the  last  of such covenants, which superseded  the  earlier
ones,  having  been entered into on the  30th  March,  1949.
Lastly, even assuming that the treaty was still in operation
as  a binding executory contract, its provisions were in  no
way  derogated from by the application of section 7  of  the
Act to the present case, and the extradition warrant  issued
under that section and the arrest made in pursuance  thereof
were  legal  and valid and could not be called  in  question
under section 491 of the Criminal Procedure Code.  As we are
clearly of opinion that the appellant's contention must fail
on this last ground, we consider it unnecessary to pronounce
on the other points raised by the AttorneyGeneral especially
as the issues involved are not purely legal but partake also
of  a political character, and we have not had the views  of
the Governments concerned on those points.
     It  was  not disputed before us that the  present  case
would fall within section 7 of the Act, all the requirements
thereof being satisfied, if only the applicability of
577
the section was not excluded, under section 18, by reason of
the  Extradition  Treaty  of 1869, assuming  that  it  still
subsists.  The question accordingly arises whether  extradi-
tion under section 7 for an offence which is not  extradita-
ble under the treaty is, in any sense, a derogation from the
provisions of the treaty, which provides for the extradition
of  offenders for certain specified offences therein  called
"heinous offences," committed in the respective  territories
of  the high contracting parties.  Under article 1 the  Gov-
ernment  of the Tonk State undertakes to extradite any  per-
son,  whether a British or a foreign subject, who commits  a
heinous  offence in British territory. A reciprocal  obliga-
tion  is  cast  by article 2 on the  British  Government  to
extradite  a  subject  of Tonk committing  such  an  offence
within  the limits of that State. Article 3 provides,  inter
alia, that any person other than a Tonk subject committing a
heinous  offence  within the limits of the  Tonk  State  and
seeking asylum in British territory shall be apprehended and
the  case investigated by such Court as the British  Govern-
ment  may direct.  Article 4 prescribes the procedure to  be
adopted  and the conditions to be fulfilled before  extradi-
tion  could  be had, and article 5 enumerates  the  offences
which  are  "to be deemed as coming within the  category  of
heinous  offences"  which, however, do not include  the  of-
fences charged against the appellant.
    The  argument on behalf of appellant was put  thus:  The
maxim  expressio unius est exclusio alterius is  applicable,
as pointed out by McNair on The Law of Treaties,  (1938--pp.
203, 204), to the interpretation of treaties.  According  to
that rule the treaty in question should be read as  allowing
extradition  only  for  the specified offences  and  for  no
others, that is to say, as implying a prohibition of  extra-
dition  by  either State for any other  offence  than  those
enumerated in article 5. Further, while the treaty  entitled
each  of the high contracting parties to demand  extradition
on  a  reciprocal basis, an unilateral  undertaking  by  the
Indian  Government to grant extradition for an  offence  for
which it could not claim extradition under the treaty
578
violates  the principle of reciprocity which is  the  recog-
nised  basis of all international compacts for  extradition.
Such  an  arrangement  places the State of Tonk  in  a  more
advantageous  position  which was not  contemplated  by  the
framers of the treaty.  And where, as here, the person whose
surrender is demanded is an Indian subject who is not liable
to  be  extradited  under the treaty,  his  surrender  under
section  7 trenches upon the liberty of the subject.  In  so
far, therefore, as that section authorises extradition of  a