dedol-hf/india-case-legal-rag huggingface dataset:
if consent to assign in his favour was withdrawn such  with-
drawal  would  be unreasonable and would not  be  valid  and
binding.  In view of such pleading we are unable to say that
the  point raised by the plaintiff at the trial was  an  en-
tirely  new  point or that the defendant was taken  by  sur-
prise.
    The next objection of the appellant was that this  point
should  not have been allowed to be raised and  no  evidence
should  have been permitted to be adduced on this  point  in
the absence of the lessor as a party to the suit.  We do not
think that there is any force in this objection.  The  Court
had  to decide whether it was a case where relief by way  of
specific performance should be given.  The  Court could  not
force  the defendant to apply to the lessor for his  consent
nor  could  the Court force the lessor to give  his  consent
and,  if the matter only depended on the consent, the  Court
would not have ordinarily, in those circumstances,  directed
the  agreement for assignment to be  specifically  enforced.
The Court, therefore, had also to consider, for the purposes
of  this case, as to whether the circumstances were such  as
would  indicate that the defendant had been relieved of  the
burden of his covenant by reason of the lessor having unrea-
sonably withheld his consent.  It is true that a decision on
that  question  in  this suit would not be  binding  on  the
lessor, but nevertheless the Court had to come to a decision
on  that question for the purposes of this suit  as  between
the parties thereto in order to award the relief of specific
performance to the plaintiff.
    The third objection of the appellant is that the  appeal
Court  should not have allowed the plaintiff to adduce  fur-
ther  evidence.  It will be recalled that the  appeal  Court
directed  the evidence of the Maharaja of Cossimbazar to  be
taken during the hearing of the appeal.  The judgment of the
appeal Court clearly indicates that it was the appeal  Court
that  "required"  the  evidence "in order to  clear  up  the
matter"  and
109
850
"for the purpose of enabling it to come to a proper decision
on this point ". The matter, therefore, is fully covered  by
Order  XLI,  rule 27 of the Code of Civil Procedure  and  no
objection  can be taken to the course adopted by the  appeal
Court  on that ground.  We do not think there is any  reason
to interfere in the exercise of the Court's discretion.
    The fourth objection is that the High Court was wrong in
holding  that the term in the agreement that  the  defendant
must  obtain the consent of the lessor before executing  the
assignment  to the plaintiff was a term for the  benefit  of
the  plaintiff  only.  It will be recalled that that  was  a
term which was introduced by the plaintiff in his offer that
eventually  ripened  into  an agreement. The  term  was  not
expressed in a manner indicating that it was inserted in the
agreement  for the protection of the  defendant.   In  other
words, the objection that the consent of the lessor had  not
been  obtained  was  one which could be availed  of  by  the
plaintiff  who could rescind the contract and claim  damages
for  the breach thereof. We cannot see how, in view  of  the
language  used  in the correspondence, the  defendant  could
plead  the absence of the lessor's consent as relieving  him
from the obligation of performing his part of the  agreement
if  the plaintiff waived the objection and insisted  on  his
carrying  out  the  agreement. The absence  of  consent  may
amount to a defect in the title of the defendant, but  which
the plaintiff was willing to accept.
Finally  it is said that by directing the specific  per-
formance of the agreement the Court has exposed the  defend-
ant  to  the  risk of an action for damages  for  breach  of
covenant.   If the assignment of the lease by the  defendant
to the plaintiff without the lessor's consent amounted to  a
breach  of covenant, the lessor could forfeit the lease  and
sue  for  possession. Such a course would  affect  only  the
plaintiff  but not the defendant, for he had already  parted
with the lease for valuable consideration.  It is said  that
the lessor could sue the defendant for damages for breach of
that
   851
covenant  and  the Court should not, by  decreeing  specific
performance,  have put the defendant in that perilous  posi-
tion,   There appear to us to  be two answers to this  argu-
ment, namely, (1) that the defendant should have, by  proper
language,   made  his obligation to  transfer  dependent  or
conditional  upon  his  being able to  obtain  the  lessor's
consent which he did not do and (2) that the plaintiff being
a  respectable and responsible person of means, the  measure
of damages could  only be a problematic conjecture.  Indeed,
it may have been precisely for this very consideration  that
the  defendant   had  unconditionally agreed to  obtain  the
consent  of  the lessor and to assign his  interest  in  the
lease.  That the plaintiff was a respectable and responsible
person  cannot, on the evidence before the Court, be  denied
or  disputed and, indeed, learned counsel for the  appellant
did not so contend.  We find ourselves in agreement with the
High Court that in the circumstances and on the evidence  on
record  the lessor had unreasonably withheld his consent  so
as to enable the defendant to assign the lease without  such
consent.   In the circumstances, we are satisfied that  both
the trial Court and the appeal Court exercised their discre-
tion properly and no ground has been made out for our inter-
fering with the judgment of the High Court.  The  appeal  is
accordingly  dismissed.  The appellant to pay the  costs  of
this appeal.
                                  Appeal dismissed.
      Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: S.K. Ghosh.
852
PETITIONER:
SETH PREMCHAND SATRAMDAS
        Vs.
RESPONDENT:
THE STATE OF BIHAR.
DATE OF JUDGMENT:
30/11/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR   14            1950 SCR  799
 CITATOR INFO :
 R          1952 SC 324  (13,23)
 R          1963 SC1484  (6)
 R          1964 SC1897  (8)
 E          1968 SC 733  (7)
 RF         1986 SC 421  (37)
ACT:
Bihar  Sates  Tax Act (VI of 1944) s. 21  (3)--Order  of
High  Court  refusing to require Board of Revenue  to  state
case--Appeal   to  Federal   Court--Maintainability--Letters
Patent  Patna  High Court:, cl. 31--"Final Order"--Order  in
exercise  of  advisory jurisdiction of High Court.
HEADNOTE:
   No  appeal lay to the Federal Court from an order of  the
Patna High Court dismissing an application under s.  21(3)of
the Bihar Sales Tax Act, 1944, to direct the Board of  Reve-
nue, Bihar, to state a case and refer it to the High  Court.
Such an order is not a` "final order" within the meaning  of
cl. 31 of the Letters Patent of the Patna High Court,  inas-
much  as  an  order of the High Court under s.  '21  (3)  is
advisory and standing by itself does not bind or affect  the
rights  of the parties though the ultimate order  passed  by
the  Board of Revenue may be based on the opinion  expressed
by the High Court.  Nor is such an order passed by the  High
Court  in the exercise either of its appellate  or  original
jurisdiction within the meaning of the said clause.
   Sri  Mahant Harihar Gir v. Commissioner  of  Income-tax,
Bihar  and Orissa (A.I.R. 1941  Pat. 225) and Tata Iron  and
Steel  Company v. Chief Revenue Authority, Bombay  (50  I.A.
212 applied.
    Feroze  Shah  Kaka  Khel  v.  Income-tax   Commissioner,
Punjab  (A.I.R. 1931 Lab. 138)disapproved.
JUDGMENT:
APPELLATE JURISDICTION: Civil Appeal No. 61 of 1950.
Appeal  from an order of the High Court of  Patna  dated
9th  September,  1948, (Agarwala C.J. and  Meredith  J.)  in
M.J.C.  No. 5 of 1948.  The appeal was originally  filed  as
Federal Court Appeal No. 71 of 1948 on a certificate granted
by  the Patna High Court under cl. 31 of the Letters  Patent
of that High Court that the case was a fit one for appeal to
the Federal Court.
    H.P. Sinha (S.C. Sinha,  with  him) for the appellant.
    S.K. Mitra (S. L. Chibber, with him) for the respondent.
    1950. November 30.  The judgment of the Court was deliv-
ered by FAzL ALl J.
800
FAZL  ALI  J. --This is an appeal from an order  of  the
High  Court of Judicature at Patna dated the 9th  September,
1948, declining to call upon the board of Revenue to state a
case  under section 21 (3) of the Bihar Sales Tax Act,  1944
(Act VI of 1944), with reference to an assessment made under
that Act.
    The Bihar Sales Tax Act was passed in 1944, and  section
4  of the Act provides that "every dealer whose gross  turn-
over during the year immediately preceding the  commencement
of  the  Act exceeded Rs. 5,000 shall be liable to  pay  tax
under the Act on sales effected after the date so notified."
It is not disputed that, having regard to the definitions of
dealer, goods and sale under the Act, the appellant, who has
been doing contract work on a fairly extensive scale for the
Central Public Works Department and the East Indian Railway,
comes  within the category of a dealer mentioned in  section
4.   Section  7 of the Act provides that "no  dealer  shall,
while being liable under section 4 to pay tax under the Act,
carry on business as a dealer unless he has been  registered
under the Act and possesses a registration certificate".  In
pursuance of this provision, the appellant filed an applica-
tion  for  registration on the 19th December,  1944,  and  a
certificate  of registration was issued to him on  the  21st
December,  1944.   On the 8th October, 1945, the  Sales  Tax
Officer  issued  a  notice to the appellant  asking  him  to
produce  his  accounts on 10th November, 1945, and  to  show
cause  why in addition to the tax to be finally assessed  on
him a penalty not exceeding one and a half times the  amount
should  not  be imposed on him under section 10 (5)  of  the
Act.   Section 10 (5), under which the notice  purported  to
have been issued, runs thus:--
     "If  upon information which has come into  his  posses-
sion, the Commissioner is satisfied that any dealer has been
liable  to pay tax under this Act in respect of  any  period
and has nevertheless wilfully failed to apply for  registra-
tion,  the  Commissioner shall, alter giving  the  dealer  a
reasonable  opportunity of being heard, assess, to the  best
of  his  judgment, the amount of tax, if any, due  from  the
dealer in respect of such
     801
period  and all subsequent periods and the Commissioner  may
direct  that the dealer shall pay, 'by way of,  penalty,  in
addition to the amount so assessed, a sum not exceeding  one
and a half times that amount."
The  appellant  appeared  before the Sales  Tax  Officer  in
response  to this notice, but obtained several  adjournments
till  16th  March, 1046, and ultimately  failed  to  appear.
Thereupon, he was assessed by the Sales Tax Officer, accord-
ing to the best of his judgment, and was ordered to pay  Rs.
4,526-13-0 as tax and a penalty amounting to one and a  half
times the amount assessed, under section 10 (5) of the  Act.
The  appellant  appealed  to the  Commissioner  against  the
assessment  and the penalty levied upon him, but his  appeal
was dismissed on the 6th June, 1946.  He then filed a  peti-
tion for revision to the Board of Revenue, against the order
of  the Commissioner, but it was dismissed on the 28th  May,
1947.   He thereupon moved the Board of Revenue to refer  to
the  High Court certain questions of law arising out  of  is
order  of  the 28th May, but Mr. N. Baksi, a Member  of  the
Board, by his order of the 4th December, 1947, rejected  the
petition with the following observations :-
    "No case for review of my predecessor's order made  out.
No reference necessary."
    Section  21  of the Act provides that if  the  Board  of
Revenue  refuses to make a reference to the High Court,  the
applicant may apply to the High Court against such  refusal,
and   the  High  Court, if it is not satisfied   that   such
refusal   was   justified,   may  require   the   Board   of
Revenue   to  state a case and refer it to the  High  Court.
The  section  also provides that "the High  Court  upon  the
hearing  of any such case shall decide the question  of  law
raised  thereby,  and  shall deliver  its  judgment  thereon
containing  the grounds on which such decision  is  founded,
and shall send to the Board of Revenue a copy of such  judg-
ment  under the seal of the Court  .........  and the  Board
shall dispose of the case accordingly."  In accordance  with
this section, the appellant made an application to the  High
Court  praying that the Board of Revenue may be called  upon
to state a case and refer
802
it  to the High Court.  Dealing with this  application,  the
High Court  pointed out that the Member of the Board had not
been  asked  to review his predecessor's order but  only  to
state a case, and gave the following directions :--
     "The  ease  must, therefore, go back to  the  Board  of
Revenue  for  a  case to be stated or for  a  proper  ,order
rejecting the application to be passed."
     The  Board  then reheard the matter  and  rejected  the
application of the appellant and refused to state a case and
refer  it to the High Court.  The appellant thereafter  made
an application to the High Court for requiring the Board  of
Revenue to state a case, but this application was  summarily
rejected.   He then applied to the High Court for  leave  to
appeal  to the Federal Court, which the High Court  granted,
following  the decision of a Full Bench of the  Lahore  High
Court  in Feroze Shah Kaka Khd v.  Income-tax  Commissioner,
punjab  and N.W.F.P., Lahore The High Court pointed  out  in
the  order granting leave that in the appeal that was  taken
to  the Privy Council in the Lahore case, an  objection  had
been  raised  as to the competency of the  appeal,  but  the
Privy  Council, while dismissing the appeal on  the  merits,
had made the following observation:-"
The objection is a serious one.  Admittedly  such an  appeal
as  the  present  is not authorized by  the  Income-tax  Act
itself.  If open at all, it must  be justified under  clause
"9,  Letters  Patent of the Lahore High Court, as  being  an
appeal  from a final judgment, decree or order made  in  the
exercise of original jurisdiction by a Division Bench of the
High  Court.  And this present appeal was held by  the  Full
Court to be so justified.  Before the Board the question was
not  fully argued, and their Lordships  accordingly  refrain
from  expressing any opinion whatever upon it"  (2).
     The High Court in granting leave to the appellant  seems
to have been influenced mainly by the fact that the view  of
the Lahore High Court had not been held by the Privy Council
to be wrong.
(1) A.I.R. 1981 Lah. 138.   (2) A.I.R. 1933 P. C. 198.
803
    At the commencement of the hearing of the appeal in this
Court,  a  preliminary objection was raised by  the  learned
counsel for the respondent that this appeals was not  compe-
tent, and, on hearing both the parties, we are of the  opin-
ion that the objection is  wellfounded.
    In  Sri Mahanth Harihar Gir v. Commissioner  of  Income-
tax, Bihar and Orissa (1) it was held by a special Bench  of
the  Patna High Court that no appeal lay to His  Majesty  in
Council  under clause 31 of the Letters Patent of the  Patna
High Court, from an order of the High Court  dismissing   an
application  under section 66 (3) of the Income-tax Act,  (a
provision  similar  to section 21 of the Act before  us)  to
direct  the Commissioner of Income-tax to state a case.   In
that case, the whole law on the subject has been clearly and
exhaustively  dealt with, and it has been pointed  out  that
the view taken by the Full Bench of the Lahore High Court in
the case cited by the appellant was  not supported by sever-
al  other High Courts and that the Privy Council also,  when
the  matter  came before it, refrained from  expressing  any
opinion  as  to its correctness.  In our opinion,  the  view
expressed in the Patna case is correct.
    Clause 31 of the Letters Patent of the Patna High Court,
on the strength of which the appellant resists the  prelimi-
nary objection raised by the respondent, runs thus :--
    "And We do further ordain that any person or persons may
appeal-to  Us,  Our heirs and successors, in  Our  or  Their
Privy  Council,  in any matter not being of criminal  juris-
diction, from any final judgment,  decree,  or  order of the
said  High   Court of  Judicature   at  Patna,    made    on
appeal and from any final judgment, decree on order made  in
the exercise of original jurisdiction by Judges of the  said
High  Court or of any Division Court, from which  an  appeal
does  not  lie to the said High Court under  the  provisions
contained in the  10th  clause of  these
(1) A.I.R. 1941 Prat. 225.
804
presents:  provided, in either case, that the sum or  matter
at   issue  is of the amount or value of not less  than  ten
thousand  rupees,  or  that such  judgment,decree  or  order
involves,  directly  or indirectly, some  claim,  demand  or
question  to or respecting property amounting to or  of  the
value  of  not less than ten thousand rupees;  or  from  any
other final judgment, aecree or order made either on  appeal
or otherwise as aforesaid, when the said High Court declares
that the case is a fit one for appeal to Us  ......  "
    In order to attract the provisions of this clause, it is
necessary to show, firstly, that the order under appeal is a
final  order; and secondly, that it was passed in the  exer-
cise  of the original or appellate jurisdiction of the  High
Court.   The second  requirement  clearly follows  from  the
concluding part of the clause. It seems to us that the order
appealed against in this case, cannot be regarded as a final
order,  because it does not of its own force bind or  affect
the  rights  of  the parties.  All that the  High  Court  is
required  to do under section 21 of the Bihar Sales Tax  Act
is  to decide the question of law raised and send a copy  of
its judgment to the Board of Revenue.  The Board of  Revenue
then has to dispose of the case in the light of the judgment
of  the  High Court.  It is true that the Board's  order  is
based on what is stated by the High Court to be the  correct
legal  position, but the fact remains that the order of  the
High Court standing by itself does not affect the rights  of
the parties, and the final order in the matter is the  order
which  is  passed ultimately by the Board of  Revenue.  This
question  has been fully dealt with in Tata Iron  and  Steel
Company  v. Chief Revenue Authority, Bombay(1),  where  Lord
Atkinson  pointed out that the order made by the High  Court
was merely advisory and quoted the following observations of
Lord  Esher  in In re Knight and  the  Tabernacle  Permanent
Building Society(2):
   "In the case of Ex parte County Council of Kent, where a
statute provided that a case might be stated
(1) [1892] Q.B. 613 at 617.
805
for  the decision of the Court it was held that  though  the
language  might prima facie import that there has to be  the
equivalent of a judgment or order, yet when the context  was
looked  at  it appeared that the jurisdiction of  the  Court
appealed to was only consultative, and that there was  noth-
ing which amounted to a judgment or order."
    It cannot also be held that the order was passed by  the
High  Court in this case in the exercise of either  original
or  appellate  jurisdiction.  It is not contended  that  the
matter  arose in the exercise of the appellate  jurisdiction
of  the High Court, because there was no appeal  before  it.
Nor  can  the  matter, properly speaking, be  said  to  have
arisen  in the exercise of the original jurisdiction of  the
High  Court,  as was held by the Judges of the  Lahore  High
Court  in the case to which reference was made, because  the
proceeding did not commence in the High Court as all  origi-
nal  suits  and proceedings should commence.  But  the  High
Court acquired jurisdiction to deal with the case by  virtue
of  an  express provision of the Bihar Sales Tax  Act.   The
crux of the matter therefore is that the jurisdiction of the
High  Court was only consultative and was  neither  original
nor appellate.
    In  this view, the appeal must be dismissed,  though  on
hearing  the  parties, it appeared to us that  the  salestax
authorities  including  the Commissioner and  the  Board  of
Revenue were in error in imposing a penalty upon the  appel-
lant  under section 10 15) of the Act which had no  applica-
tion  to  his case, inasmuch as he had  been  registered  as
required by section 7 of the Act.
    In  the circumstances, while dismissing the  appeal,  we
make no order as to costs.
                Appeal  dismissed.
Agent  for  the appellant:  R.C. Prasad.
Agent for the respondent: p.K. Chatterjee.
806
PETITIONER:
GNANAMBAL AMMAL
        Vs.
RESPONDENT:
T. RAJU AYYAR AND OTHERS.
DATE OF JUDGMENT:
21/10/1950
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
FAZAL ALI, SAIYID
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  103            1950 SCR  949
 CITATOR INFO :
 RF         1961 SC1302  (15)
ACT:
    Hindu   law--   Will--Construction--General   principles
--Presumption against intestacy.
HEADNOTE:
The cardinal maxim to be observed by courts in  constru-
ing  a will is to endeavour to ascertain the  infentions  of
the  testator. This intention has to be  gathered  primarily
from  the language of the document which is to be read as  a
whole without indulging in any conjecture or speculation  as
to  what the testator would have done if he had been  better
informed or better advised.
    The  courts  are however entitled and bound to  bear  in
mind  other matters than merely the words used.   They  must
consider the surrounding circumstances, the position of  the
testator,  his family relationship, the probability that  he
would use words in a particular sense, and many other things
which are often summed up in the somewhat picturesque figure
the  court  is entitled to put itself  into  the  testator's
armchair '.
    But all this is solely as an aid to arriving at a  right
construetion  of the will, and to ascertain the  meaning  of
the  language when used by that particular testator in  that
document.  As soon as the construction is settled, the  duty
of  the court is to carry out the intsentions as  expressed.
The court is in no case justified in adding to  testamentary
dispositions.   In all cases it must loyally carry  out  the
will as properly construed, and this duty is
950
  universal, and is true alike of wills of every nationality
and every religion or rank of life.
A  presumption  against  intestacy may be raised  if  it  is
justified by the context of the document or the  surrounding
circumstances;  but  it can be invoked only  when  there  is
undoubted  ambignity in ascertainment of the  intentions  of
the  testator.   It  cannot be that merely with  a  view  to
avoiding  intestacy  you are to do otherwise  than  construe
plain words according to their plain meaning.
A  Hindu died leaving   a widow, a widowed daughter  and   a
married daughter G, after he had made a will giving authori-
ty to his widow to adopt a son of G should she beget one, or
in the alternative a son of one of his nephews.  Para. 4  of
the will provided that if his widow adopted G's son all  his
properties  except the village of K and the house at  I  and
other  properties disposed of by the will shall pass to  the
adopted son; and para. 5 provided as follows:''The whole  of
the  village  of K and the house a I, my  daughter  N  shall
enjoy  with  life interest and after her the  said  property
shall  pass to my daughter G and her children on payment  by
the latter of Rs. 5,000 to A, the daughter of N." Later  on,
amongst the provisions which he wished to make if a son of a
nephew  was  adopted,  there was a provision  which  ran  as
follows: "Para. 13.  The village of K shall be enjoyed by  N
as  stated in para. 5."  A nephew's son was adopted  and  he