Case ID: 5343

Judgment:
ivil Appeal No. 5675 of 1985. From the Judgment and Order dated 2.8.1985 of the Cal cutta High Court in Appeal from Original Order Tender No. 165 of 1985. S.N. Kaicker. Girish Chandra and Mrs. Sarala Chandra for the Appellants. Tapas Roy	 Parijat Sinha	 D.N. Mukherjee	 Dalip Sinha and J.K. Das for the Respondents. The Judgment of the Court was delivered by SEN J. This appeal by special leave is directed against the judgment and order of the Calcutta High Court dated August 2	 1985 quashing a resolution passed by the Khargram Panchayat Samiti dated April 12	 1985 specifying that the cattle fairs run by two rival organisations r.e. Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Saturday every week and Sherpur Cattle Hat run by Prabartak Parishad on Friday. By the judgment under 1210 appeal	 a Division Bench of the High Court has held that even though the Panchayat Samiti was vested with the power to grant licence for holding of a hat or fair under section 117 of the West Bengal Panchayat Act	 1973. still in the absence of a rule framed under the Act it had no power to specify a day on which such hat or fair shall be held. The issue involved is whether the Panchayat Samiti being vested with the authority to grant a licence for the holding of a hat or fair under section 117 of the Act within the limits of its terri torial jurisdiction	 must necessarily be held to have the consequential or incidental power to specify a day for the holding of such hat or fair. The facts of the case are as follows. Ever since 1933	 a cattle fair called Nagar Cattle Hat is being held on Satur day every week by the Nagar Quorania Junior High Madrassah	 a charitable educational institution which runs a school and is also engaged in other social activities	 which attracts a large gathering of buyers and sellers of cattle dealers within the district of Murshidabad and even beyond the district. Since 1974	 respondent No. 6 a club called Prabar tak Parishad	 set up a parallel cattle fair at a place called Sherpur	 about two kilometres away (as the crow flies) from the site of Nagar Cattle Hat on every Saturday	 known as Sherpur Cattle Hat. The holding of two rival cattle fairs on the same day gave rise to a feeling of rivalry couple with tension amongst the local population as also the large number of cattle dealers and peasantry attending the cattle fairs and this frequently led to violent conflicts and skirmishes between the two rival groups. Upon a repre sentation made to him in 1980	 the District Magistrate	 Kurshidabad caused an inquiry to be held and by his order dated April 2	 1980 held that holding of the two cattle fairs on the same day created serious law and order problem and accordingly directed holding of the hats on two differ ent days for preservation of public peace and tranquility. On a writ petition filed by respondent No. 6 Prabartak Parishad	 a Division Bench of the High Court by its order dated June 2	 1982 struck down the impugned order of the District Magistrate on the ground that no such direction could be issued by him as the competent authority was the Khargram Panchayat Samiti. It was observed: "The only authority which is competent to give any direction in this regard is the authority under the West Bengal Panchayat Act	 1973. No such direction has been given by the authority under the said Act. In the circumstances	 we set aside the impugned order of the District Magistrate and the judgment of the learned Judge. Appeal is allowed. 1211 There will be no order as to costs. It is made clear that this order is without prejudice to any steps that may be taken in 	accordance with law by the authority under the said Act. " In Compliance with the direction made by the High Court	 the District Magistrate obviously actuated by consideration of maintenance of law and order requested the Chairman of the Khargram Panchayat Samiti to take necessary steps as the holding of rival hats in contiguous areas could not be allowed to. continue as it gave rise to serious law and order problem. A meeting of the Panchayat Samiti was accord ingly held on June 20	 1984 and a resolution was passed by a majority of the members that the Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Satur day as before and the Sherpur Cattle Hat run by Prabartak Parishad being of recent origin would be held on Friday. Thereupon	 respondent No. 6 filed another writ petition in the High Court challenged the impugned resolution of the Panchayat Samiti. A learned Single Judge by his judgment and order dated January 14	 1985 quashed the impugned resolution of the Panchayat Samiti on the ground that it acted in breach of the rules of natural justice while reserving liberty to the Panchayat Samiti to come to a decision afresh after affording an .opportunity to respondent No. 6 Prabar tak Parishad to have its say before it. Aggrieved	 the appellant preferred an appeal and applied for stay. A Divi sion Bench of the High Court by its order dated March 19	 1985 admitted the appeal but declined to grant stay. and directed that the Panchayat Samiti should in the meanwhile comply with the order of the learned Single Judge. As a consequence	 Khargram Panchayat Samiti was constrained to give effect to the direction made by the learned Single Judge. It accordingly issued notices to the contending parties i.e. both Nagar Quorania Junior High Madrassah and Prabartak Parishad requiring them to submit their claims for consideration. and also fixed a date being April 12	 1985 for hearing. On that date. the Panchayat Samiti at its open meeting heard the representatives of the parties and scruti nised the documents placed before it. After considering the claims of both the parties and the material record	 it passed a resolution that the Nagar Cattle Hat would be held as before on Saturday every week and the Sherpur Cattle Hat would be held on Friday	 and directed the Executive Officer to incorporate such a condition in the licence granted to the two organisations for holding the cattle fairs on these days. Again	 respondent No. 6 filed a writ petition before the High Court challenging the aforesaid resolution dated April 12	 1985. A learned Single Judge by his judgment dated June 19	 1985 dismissed the writ petition in view of the pendency of the appeal before the 1212 Division Bench	 pursuant to whose direction the aforesaid resolution had been passed. Respondent No. 5 then moved the Division Bench for restraining Khargram Panchayat Samiti from giving effect to the said resolution. The Division Bench by its judgment under appeal quashed the impugned resolution dated April 12	 1985 of Khargram Panchayat Sami ti. It held that although in terms of section 117 of the Act the Panchayat Samiti was vested with the power of granting a licence for the holding of a hat or fair	 by the framing of rr. 7	 8 and 9 of the West Bengal Panchayat (Samiti Adminis tration) Rules	 1984 the power of the Panchayat Samiti is confined to making provision for maintenance of sanitation	 health and hygiene in the market area which is the essence of the power under section 117	 and further that in the absence of a provision in the rules in that behalf it had no power to specify a day on which such hat or fair should be held. It accepts that when a power is conferred on a statutory authority. it necessarily carries with the other incidental or ancillary powers and holds that the Panchayat Samiti being vested with the power to grant a licence under section 117 of the Act had been conferred the power under rr. 7	 8 and 9 to making provision for sanitation	 health and hygiene in the market area which is the essence of the power and there fore the Panchayat Samiti had tile power to see that sanita tion	 health and hygiene are properly maintained and looked after	 and nothing more. In repelling the contention that the specification of a day for the holding of a hat or fair was consequential to the power to grant a licence under section 117 of the Act	 it observed: "there can be no doubt that when a power is conferred on a statutory authority such power will also include other incidental or ancil lary powers without the exercise of which the main power cannot be exercised. In the instant case however. Panchayat Samiti has been con ferred with a power to see that sanitation	 health and hygiene are properly maintained and looked after. The provisions of Rule 9 of the Rules	 as stated already	 imposed certain terms and conditions on the grant of license for holding a market or hat	 but all these terms and conditions relate to maintenance or sanitation	 health and hygiene or supply of water or making proper lighting arrangement. The essence of power is	 therefore	 the main tenance of sanitation	 health and hygiene. Many incidental powers may be exercised by the Panchayat Samiti which are directly related to the exercise of the maintenance of	 sanita tion	 health and hygiene. Such powers are not provided for under Rule 9	 yet they could be exercised by the Panchayat Samiti in exercise of 1213 its power under Rule 9 incidentally. But	 in our opinion. the Panchayat Samiti cannot exercise a power which has no connection whatsoever with sanitation	 health and hy giene. The reason for fixing different days	 viz.	 Fridays and Saturdays for the holding of the two hats	 viz.	 apprehended breach of peace	 has no connection whatsoever with the question of sanitation	 health and hygiene. Exercise of such assumed power cannot be said to be incidental or ancillary to the main power for the imposition of terms and condi tions of a licence. In case	 any broach of peace takes place. it will be a concern of the District Magistrate to take steps for the same. " In our judgment	 the view taken by the High Court that although the Panchayat Samiti was vested with the power to grant a licence for the holding of a hat or fair under section i 17 of the Act	 yet it had no consequential or incidental power to specify a day for holding of such hat or fair	 is manifestly erroneous and cannot be supported. It failed to appreciate that under the Act the power of general adminis tration of the local area vests in the Panchayat Samiti only to grant a licence to hold a hat or fair under section 117 of the Act	 but such power of general administration necessarily carries with it the power to supervise	 control and manage such hat or fair within its territorial jurisdiction. The conferment of the power to grant a licence for the holding of a hat or fair under section 117 of the Act includes the power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. The deci sion of the High Court runs counter to the well accepted principles. It overlooks that the statutory bodies like the Panchayat Samiti enjoy a wide 'incidental power ' i.e. they may do every thing which is 'calculated to facilitate	 or is conductive or incidental to	 the discharge of any of their functions ' and the doctrine of ultra vires is not to be applied narrowly. It is well accepted that the conferral of statutory powers on these local authorities must be con strued as impliedly authorising everything which could fairly and reasonably be regarded as incidental or conse quential to the power itself. See: de Smith 's Judicial Review of Administrative Action. 4th edn.	 p. 95. HWR Wade 's AdminiStrative Law	 5th edn.	 p. 217. Craies on Statute Law	 6th edn.	 p. 276. Attorney General vs Great Eastern Railway	 ; ; Baroness Wenlock vs River Dee Co.	 De Smith in his celebrated work Judicial Review of Administrative Action	 5th edn. at p. 95 puts the law tersely in these words: 1214 The House of Lords has laid down the principle that "whatev er may fairly be regarded as incidental to. or consequent upon. those things which the Legislature has authorised. ought not (unless expressly prohibited) to be held	 by judicial construction	 to be ultra vires. " This principle was. enunciated by Lord Selborne in Attorney General vs Great Eastern Railway	 supra	 in these words: "The doctrine of ultra vires ought to be reasonably. and not unreasonably	 understood and applied and whatever may be fairly regarded as incidental to. or consequential upon	 those things which the legislature has authorised ought not (unless expressly prohibited) to be held	 by judicial con struction. to be ultra vires. " These words have been quoted by Professor wade in his monumental work Administrative Law. 5th edn. at p	 2 17 and also by Craies on Statute Law	 6th edn. p	 276. Craies also refers to the observations of Lord Watson in Baroness Wenlock vs River Lee Co.	 supra	 .to the effect: "Whenever a corporation is created by Act of Parliament with reference to the purposes of the Act	 and solely with a view to carrying these purposes into execution	 I am of opinion not only that the objects which the corpora tion may legitimately pursue must be ascer tained from the Act itself	 but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions	 This Court in V.T. Khanrode & Ors. vs Reserve Bank of India, ; has followed the dictum of Lord Sel borne in Great Eastern Railway 's case and reaffirmed the principle that the doctrine of ultra vires in relation to the powers of a statutory corporation have to be understood reasonable and so understood, whatever may fairly be regard ed as incidental to, or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires. It had earlier been laid down by a Con stitution Bench of the case of State of Uttar Pradesh vs Batuk Dee Pati Tripathi & Anr., [ that a power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. The High Court failed to apreciate that the power to grant a licence for the holding of a hat or fair under section 117 of the Act necessarily carries with it the power to specify a day on which such hat or fair shall be held. Such power to 1215 specify a day must be held to be a power incidental to or consequential upon the principal power of issuing a licence under section 117 of the Act for holding of a hat or fair. The rules or the absence of it do not detract from the substan tive power conferred by a statute. The essence and content of the power of a Panchayat Samiti under section 117 of the Act is issuance of a licence for the holding of a hat or fair and not mere maintenance of sanitation, health and hygiene as held by the High Court. For these reasons, we have no hesitation in reversing the judgment of the High Court. The appeal must accordingly succeed and is allowed. The judgment and order passed by the High Court are set aside and the writ petition is dismissed. No. costs. A.P.J. Appeal al lowed. 
4049	Civil Appeal No. 54 of 1969. From the Judgment and Order dated 23 10 1968 of the Mysore High Court in R.F.A. No. 25/63. B. D. Dal, section Bhandare, A. N. Karkhanis and Miss M. Palival for the Appellant. V. section Desai and N. Nettar for the Respondent. 164 The Judgment of the Court was delivered by SARKARIA, J. This appeal by the defendant, on certificate, is directed against a judgment, dated October 23, 1968, whereby in First Appeal, the High Court of Mysore set aside the judgment and decree passed by the joint Civil Judge, Senior Division, Belgaum. The pedigree of the family given below will be helpful in understanding the facts leading to this appeal: Ravalojirao (died before 1900) | | | Narayanarao Ramachandrarao (died in 1924) (died on 20 1 1955) | | Tuljeramarao Krishnabai (died in 1944) (Defendant appellant) | | | | Appasaheb Nanasaheb (Pltf.1.) (Pltf.2.) Sou. Vasundhararaje (Pltf. 3.) | | | | | | | Ashok Kumar Pushpendra Virendra Indrajit Ravalogirao | (Pltf.3) Singh Singh Singh (Pltf.9) | (pltf.6) (pltf.7) (pltf.9) Narayanarao (Pltf.10) By a registered document, dated July 25, 1902 (exhibit 39), executed by Narayanarao, six Desgat lands situated in villages Nanandi, Umarani and Nandikurli totalling about 120 acres, were received by Ramachandrarao, for separate living and maintenance of himself and his male lineal descendants. Out of the lands covered by the said deed, three lands comprised in Survey Nos. 114 (26 acres 30 gunthas), 115 (9 acres 38 gunthas) and 116 (26 acres 34 gunthas), totalling about 63 acres and 22 gunthas, situate in the area of village Umarani, Taluka Chikodi, are the subject matter of the suit, out of which this appeal has arisen. The respondents herein, who are the grand sons and great grandsons of Narayanarao, on July 24, 1960, instituted Suit No. 26/60 in the Court of Civil Judge, Belgaum against Smt. Krishnabai, appellant, for possession of the said lands and for recovery of past and future mesne profits, with these allegations: (i) that the suit lands were Desgat Watan lands and were part of the Desgat Watan estate of Nanandi, (ii) that by virtue of an ancient and immemorial family and territorial custom, the Desgat estate of Nanandi was impartible and descended from generation to generation to the seniormost member by the rule of primogeniture, while the junior members of the family were only given some lands for their maintenance by the holder of the Desgat for the time being; (iii) that till his death, 165 the appellant 's father continued to be an undivided member of the Joint family consisting of himself and the plaintiffs; and (iv) that on July 31, 1956, a partition by metes and bounds has taken place between the plaintiffs inter se under a partition deed. The suit was resisted by the defendant appellant. She denied the alleged ancient, family and territorial custom of primogeniture. She denied that the property formed part of the Desgat Watan estate of Nanandi. She further denied that her father, Ramachandrarao, came into possession of the suit land for his maintenance. She further pleaded that Ramachandrarao and his brother Narayanarao had separated during their life time and the suit lands and some other lands were given to Ramachandrarao in the partition between the two brothers towards a part of his share, and it was agreed that the share of Ramchandrarao in other family properties would be separated and settled at some future convenient time. She further stated that since 1902, Ramachandrarao was in separate possession and enjoyment of the suit lands till his death on January 20, 1955, and that at the time of his death he was not an undivided member of the joint family of himself and the plaintiffs. She further pleaded that on her father 's death she succeeded to the suit lands, which were his separate property. She further relied on the Bombay Pargana and Kulkarni Wantans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950), (for short, called the Act), and the re grant of the land made in favour of her father, under that Act. The learned trial judge by his judgment, dated September 29, 1962, dismissed the respondents ' suit with these findings: (a) that the alleged custom of impartibility and devolution of property by the rule of primogeniture had not been proved; (b) that there was a severance of the joint family consisting of the two brothers, in 1902, when they had agreed to separate, that since then for about 53 years till his death in 1955, Ramachandrarao was living separately and enjoying the suit land as his separate property; (c) that the suit lands were originally Watan lands, but they were not so at the date of the suit because the Bombay Act 60 of 1950, which came into force on May 1, 1951, had abolished Watans and thereafter the suit lands were, on the application of its holder, Ramachandrarao, regranted in his favour; that the plaintiffs were aware of Ramachandrarao 's application for the regrant and they had tacitly assented to the regrant in his favour. 166 Aggrieved, the plaintiffs preferred an appeal in the High Court of Mysore. The High Court affirmed the finding of the trial court, that the custom pleaded by the plaintiffs with regard to the impartibility of the property had not been established. It observed that the onus of proving partition is on the defendant	 "but the only evidence in support of her case that Ramachandrarao was divided	 is Exhibit No. 39". The High Court construed the deed (exhibit 39) with the aid of its translations into English	 one made by the trial judge and the other by the High Court Translator. It then took note of these features in support of the 'theory of partition ': "(a) Permanency of the arrangement. The deed provides that Ramachandrarao and his descendants in the male line shall enjoy the property from generation to generation without interference from the grantor. (b) Cesser of commonsality. The deed says that Ramachandrarao desired to live separately and therefore the lands were granted to him. The evidence is that Ramachandrarao lived separate from 1902. There is no evidence to the contrary. " It then listed these features to negative the 'theory of partition ': "(a) The nomenclature of the deed. It is styled as a deed of maintenance. (b) It was executed by one of the parties only. If it was intended to be a partition deed it would have been executed by both the parties each relinquishing his rights in the properties not allotted to him. (c) The deed says that the lands were given to the grantee and his descendants in the male line for maintenance only and they should enjoy the lands continuously. (d) The total extent of the Desgat lands was over eight thousand acres; if partition was intended	 Ramachandrarao who was entitled to a one half share would not have been contented with 90 acres valued at Rs. 3	400/ . " After cataloguing these pros and cons the High Court concluded: "In our judgment	 Exhibit 39 considered along with the circumstances in which it was executed	 does not establish the defendant 's case that Ramachandrarao was divided from Narayanarao in 1902 and that the suit lands	 among others	 were allotted to Ramachandrarao 's share. We are of the view that on the erroneous but honest belief that Des 167 gat was an impartible estate	 Narayanarao granted the lands to Ramachandrarao and his descendants in the male line in lieu of their maintenance. When Ramachandrarao died without male issue	 the interest granted ceased or the tenure came to an end. The plaintiffs who are the surviving members of the family are entitled to resume the lands. " Although no such plea was taken by the plaintiffs in the plaint	 the High Court held that in view of Section 90 of the Indian Trust Act	 the regrant made	 after the abolition of Watans	 under the Act in favour of Ramachandrarao must ensure for the benefit of the family of the Watandars including the plaintiffs	 because Ramachandrarao at the time of his death was holding the suit land as an undivided member of the joint family	 for his own benefit and that of the other members of the undivided family. Since there was no evidence as to the occupancy price paid by Ramachandrarao to obtain the regrant	 the High Court	 after allowing the appeal and setting aside the decree of the Trial Court	 remanded the matter to the court below	 with a direction that it should ascertain the amount of occupancy price paid by Ramachandrarao	 and then pass a decree for possession in favour of the plaintiffs subject to the repayment of the said amount. Hence this appeal by the defendant on the basis of a certificate granted by the High Court under Article 133(1)(e) and (c) of the Constitution. Shri B. A. Bal	 learned counsel for the appellant	 has	 in the course of his arguments	 sought to make out two main points: 1. (a) Sometime prior to the execution of the deed. (exhibit 39) dated July 25	 1902	 there was a severance of the joint Hindu family as a result of an intimation by Ramachandrarao of his intention to separate and Narayanarao 's acceptance of the same. Such severance can he clearly inferred from: (i) the recitals in the deed (exhibit 39)	 the permanent allocation of the suit land along with some other land	 to Ramachandrarao and his descendants	 and (ii) the subsequent conduct of the members of the erstwhile joint family. (b) Since the deed (exhibit 39) (it is argued) is more than 75 years old and Narayanarao	 Ramachandrarao and others who might have given evidence with regard to the circumstances resulting in this transaction are all deed and gone	 the recitals	 in the deed coupled with the subsequent conduct of the parties	 and supplemented by reasonable inferences	 were more than sufficient to discharge the initial 168 onus	 if any	 on the defendant to show severance of the joint family since 1902 or thereabout and the same continued till Ramachandrarao 's death in 1955. Reference in this connection has been made to Bhagwan Dayal vs Mst. Reoti Devi.(1) (c) Since at the time of his death in 1955	 Ramachandrarao was not a member of an undivided Hindu family and the suit land was his separate property	 his daughter the defendant would	 even according to traditional Hindu Law	 inherit his estate to the exclusion of the plaintiff collaterals. (2) Section 4 of the Bombay act 60 of 1950 abolished Watons with effect from May 1	 1951. Section 5 of the same Act abrogated the rule of primogeniture and also every law or custom by virtue of which females were postponed to males in the matter of succession. After the abolition of the Watons Ramachandrarao alone	 to the knowledge of the plaintiff respondents	 obtained a regrant of the suit land from the Government in his favour. Similarly	 the plaintiffs applied for regrant of the other Ex watan lands measuring about 8000 acres	 to the exclusion of Ramachandrarao. The regrant of the suit land in favour of Ramachandrarao created new rights exclusively in his favour. Since on May 1	 1951 he was holding the suit land separately as a divided member of the family	 the regrant did not ensure for benefit of the plaintiffs. As against this	 Shri V. section Desai submits that since it was the admitted case of the parties that sometime before the execution of the deed (exhibit 39) dated July 25	 1902. Narayanarao and Ramachandrarao constituted a joint Hindu family governed by Mitakshra	 and the presumption of jointness in case of brothers is stronger	 the burden was on the defendant to prove by cogent and convincing evidence that the joint family had disrupted and Ramachandrarao had separated in 1902 and the suit land was his separate property which fell to his share in partition. It is maintained that the recitals in the deed	 exhibit 39	 do not furnish any evidence that Ramachandrarao had communicated an unambiguous and clear intention to separate from his brother in estate and thenceforth hold it in defined shares. It is urged that the transaction evidenced by the deed should be construed by the Court	 not according to its own sense of right and wrong	 but according to the notions and beliefs prevailing among orthodox Hindus in 1902	 of a strata of society to which Narayanarao and Ramachandrarao belonged. In 1902	 proceeds the argument	 to cause disruption of a joint Hindu family of Watandars 169 was considered to be a sin. According to Shri Desai	 if the document	 exhibit 39	 is considered from that view point it would appear that the arrangement devised thereby was consistent with the continuance and preservation of the jointness of the family and its estate	 rather than its division and disruption. It is pointed out that the area of Watan Land held by the joint Hindu family in 1902 was about eight thousand acres	 and if the intention of the brothers was to sever the joint family status	 there was no difficulty in declaring that thenceforth the two brothers would hold the entire estate in equal	 defined shares. It is emphasised	 though Ramchandrarao	 died in 1955	 he never asked for partition and possession of his one half share in the remaining seven or eight thousand acres held by Narayanarao and his descendants	 but remained contented with a mere 118 or 120 acres given to him for maintenance under exhibit 39 in 1902. It is further submitted that the Court cannot construe the deed exhibit 39	 as a deed of partition	 but only as a deed of maintenance	 as it	 expressly purports to be	 because in view of Section 92 of the Evidence Act no extrinsic evidence is admissible to contradict or vary its terms. In support of his arguments Shri Desai has referred to Paragraph 448 of Mayne 's Hindu Law (1953 Edn.). Learned counsel further submits that in view of the paucity of evidence produced by the defendant appellant to show division of the joint family	 the High Court was right in holding that Ramchandrarao died as an undivided member of the joint Hindu family consisting of himself and the plaintiffs. It is submitted	 in that view of the matter	 the second point urged by Shri Bal does not survive for decision. Nevertheless	 Shri Desai took us through the relevant provisions of the Bombay Act LX of 1950 and the Watan Act of 1874	 to show that there is nothing in those provisions which militates against the finding of the High Court to the effect	 that if Ramchandrarao died as an undivided member of the joint family	 the regrant would enure for the benefit of all the members of the family. We will take Point No. 1 canvassed by Shri Bal. The primary question that falls to be considered is	 whether in 1902 or shortly prior to it	 there was a partition between the two brothers Narayanarao and Ramchandrarao in a manner known to law. In this connection	 it is necessary	 at the outset	 to notice the fundamental principles of Hindu Law bearing on the point. The parties are admittedly governed by Mitakshra School of Hindu Law. In an undivided Hindu family of Mitakshra concept	 no member can say that he is 170 the owner of one half	 one third or one fourth share in the family property	 there being unity of ownership and commonsality of enjoyment while the family remains undivided. Such unity and commonsality or the essential attributes of the concept of joint family status. Cesser of this unity and commonsality means cesser or severance of the joint family status	 or	 which under Hindu Law is 'partition ' irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds. Disruption of joint status	 itself	 as Lord Westbury put it in Appovier vs Rama Subha Aivan. 	(1) in effect	 "covers both a division of right and division of property. " Reiterating the same position	 in Giria Bai vs Sadashiv	(2) the Judicial Committee explained that division of the joint status	 or partition implies " separation in interest and in right	 although not immediately followed by a de facto actual division of the subject matter. This may	 at any time	 be claimed by virtue of the separate right. " The division of the joint status may be brought about by any adult member of the joint family by intimating	 indicating or representing to the other members in clear and unambiguous terms	 his intention to separate and enjoy his share in the family property	 in severality. Such intimation	 indication or representation may take diverse forms. Sometimes it is evidenced by an explicit declaration (written or oral); sometimes	 it is manifested by conduct of the members of the family in dealing separately with the former family properties. Service of notice or institution of a suit by one member/coparcener against the other members/coparceners for partition and separate possession may be sufficient to cause disruption of the joint status. We will now deal with the first proposition propounded by Shri Bal	 in the light of these principles. The primary question that arises for consideration is	 whether Ramchandrarao had brought about a division of the joint family status or partition by intimating to his brother in clear terms	 sometime in 1902 or shortly prior thereto	 his intention to separate and enjoy his share in severality. Answer to this question depends on inferences which may	 reasonably be drawn from the contents of the deed (exhibit 39) and the subsequent conduct of the parties. The original deed	 Ex.39 is in Marathi. It was rendered into English by the trial judge himself	 who concededly had adequate knowledge of Marathi. According to him	 the deed (Ex.39) speaks of a division of 171 the joint family status and separation of interests. For this construction	 the trial judge drew much on the word "Vibhaktarahave" which	 according to him	 connotes division of status. The learned Judges of the High Court however	 did not accept this interpretation. They preferred to rely on the English translator of this deed made by the High Court Translator. Since there is some variation between the two translations	 it will be worthwhile to extract the same here for facility of comparison and reference. The translation effected by the trial judge	 reads as under: "You (Ramchandra Rao) are my younger brother. We were living jointly till today. Recently you have desired to take some property for maintenance (Nirwah Kurat) and live separate after division (Vibhaktarahave). Since I have deemed it proper to give you some property for your maintenance as befits our Sansthan	 I have given you the following properties for your maintenance. (Then follows the description of the properties). All these lands have been given to you along with the appurtenances for meeting the livelihood of you and your family members. Hence	 you and your successors i.e.	 your natural born male descendants should enjoy the properties from generation to generation and live happily. The Sansthan will not interfere with the lands any longer. Only you and your natural male descendants should enjoy the property. You shall also pay the Joodi to the Government hereafter." (The disputed words have now been underlined). The translation made by the High Court Translator reads as below: "You are my younger brother and you have been residing with me only in jointness up till now. As you have been recently thinking of residing separately yourself by receiving some properties for your maintenance	 I found it proper to give you some property for your maintenace as befits our Sansthan and have given you for your maintenance the 'Desgat ' lands of our Khata situate in the below mentioned villages in Taluka Chikodi Sub District	 Belgaum District. Particulars thereof are as under: Lands situate at Village Nanadi. (1) Bagayat Land of No. bearing Survey No. 189 measuring 14 acres 23 guntas assessed at Rs. 20 0 0. The land together with a well valued at Rs. 1000/ . (2) The land 172 measuring 9 acres 30 guntas assessed at Rs. 41 8 0 out of Survey No. 187 is bounded on the east by a land in our possession out of the same No. on the west by the village limits	 on the south by the land No. 196 and on the north by the land bearing Survey No. 198. In the land enclosed within the aforesaid boundary there is a well. This well has two "Veravantas" i.e. one on the Eastern side and another on the Southern side. It has 10 'motes '. Out of the 'motes ' of that well we are to get water with 3 'motes ' and you are to get water with 2 'motes '. Repairs to the said well also are to be carried in that portion only and the expenses required to remove the mud etc.	 are also to be borne in the same proportion itself. Value Rs. 1000/ Lands situate at the Village Umarani. Rs. No. Acres Assessment 3 99 26 30 14 0 0 The said 3 4 100 9 38 9 0 0 lands are 5 101 26 34 17 0 0 entire No. and are valueed at Rs. 1000/ together with the appurte nant thereof. Land situate at Majere Kenpatte in the Village Nandikurli. 6 120 24 18 9 0 0 This land of entire No. together with the appurtenances thereof is valued at Rs.400/ . The lands as mentioned above are given to you for your maintenance and the maintenance of your dependants. Hence	 you and your descendants	 i.e.	 natural male descendants should enjoy the said lands continuously and live happily. In respect of the said lands given to you	 you will not be put to any trouble from the state (Sansthan) in any manner but	 the said lands are to be continued with you and your natural male descendants. You should go on paying the joodi payable by you to the Government in respect of the said lands in our possession are given to your possession today. To the above effect the deed of maintenance is duly executed. " A comparative study of the above extracts would show that except for the English rendering of the word "Vibhaktarahave" by the learned trial judge	 there is no substantial difference between the two translations. The Marathi word "Vibhaktarahave"	 according to my learned Brother on this Bench	 who has working knowledge of Marathi	 is a compound of two words	 namely	 "Vibhakta" and "Rahave". "Vibhakta" appears to have its root in the Sanskrit word "Vibhaga". "In the Mitakshra	 Vijnanesvara defines the word 173 "Vibhaga" which is usually rendered into English by the word "partition" as the adjustment of diverse rights regarding the whole	 by distributing them in particular portions of the aggregate." (See Para 448 of Mayne 's Hindu Law	 11th Edition.) 'Rahave ' means "living". In view of this etymological analysis	 it cannot be said that the learned trial judge 's interpretation of the word "Vibhaktarahave" as equivalent to "live separately after division" was literally wrong. Even the learned Judges of the High Court (who did not claim to know Marathi)	 have not held in categoric terms that this translation of "Vibhaktarahave" made by the trial judge is grammatically wrong. What the learned Judges appear to say is that the context in which the word "Vibhaktarahave" has been used	 gives it a meaning different from its grammatical sense	 so that it cannot be understood as signifying an intention to divide	 but connotes only a desire to live separately. The learned Judges have sorted out four features from the context of the deed	 exhibit 39	 which	 according to them	 militate against the literal interpretation of the word "Vibhaktarahave" and negative the theory of division of status. Those features it will bear repetition are: (i) The deed is styled as one for maintenance	 (ii) It was executed by Narayanarao only	 (iii) The lands under the deed were given to Ramchandrarao and his descendants in the male line for maintenance only	 (iv) The total extent of 'Desgat ' lands was over 8000 acres. Ramchandrarao should have claimed half of the entire 'Desgat ' area and not remained contented with about 90 acres given to him under the deed exhibit 39). In our opinion	 none of these features	 if appreciated in the right perspective	 detracts from the conclusion that there was a division of joint family status as a result of an intimation to Narayanarao by Ramchandrarao	 of his intention to separate	 followed by allotment to Ramchandrarao in furtherance of that division	 the lands mentioned in exhibit 39. The four features listed above rested on erroneous assumptions. Even according to the High Court	 both the brothers were	 at the time of execution of the document exhibit 39	 labouring under an erroneous belief that the 'Desgat ' lands were impartible and held by the eldest member of the family in the male line	 while the junior members were entitled only to maintenance. The High Court has expressly upheld the finding of the trial Court that no custom was established according to which	 the 'Desgat ' lands of the family were impartible and vested only in the eldest male member of the family to the exclusion of the junior members. The High Court has further not disagreed with the trial courts finding that no custom of primogeniture in this family has been established. 174 Once it is held that this two fold assumption or belief about the impartibility of the estate and its devolution in the male line by rule of primogeniture was fallacious	 the said four features stemming therefrom	 lose their significance. These features which purport to give the transaction (exhibit 39) the colour of a mere maintenance arrangement as distinguished from an absolute transfer or allotment	 have to be credited with no more substance than phantoms conjured out of phantasy	 probably by the sole executant of the deed with a self serving motive. In any case	 they are words of vain show or form lacking reality. We have therefore	 to peal aside this jejune and illusory cover	 to reach at the kernel and concentrate on the crucial features of the document exhibit 39. We are unable to accept Shri Desai 's argument that the process adopted by us would involve contravention of Section 92 of the Evidence Act. Firstly	 in this process	 which is essentially one of construction of the deed	 exhibit 39	 no question of contradicting	 varying	 adding to or subtracting any term of the disposition is involved. The deed	 exhibit 39	 falls into two distinct parts: The first of them comprises the preamble or the preliminary recital of a past fact. This part does not contain any term of disposition of property. Such terms are confined only to the second part. Section 92 prohibits only the varying of terms of the documents	 not the memoranda or recitals of facts	 bereft of dispositive terms	 particularly when the correctness of the whole or any part of the recital is in question. We are primarily concerned with this preliminary recital which does not fall under the dispositive or operative portion of the document. The question is	 whether or not this recital of a past oral intimation by Ramchandrarao to Narayanarao had caused severance of joint family status. It is settled law that a clear intimation by a coparcener to the other coparcener of his intention to sever the joint status need not be in writing. For these two fold reasons	 the bar in section 92 against the admissibility of extrinsic evidence for the purpose of showing that the insertion of the words "for your maintenance" in the recital is wrong	 unreal	 unmeaning and the coinage of the executant 's own brain	 is not attracted. Secondly	 there is ample authority for the proposition that when there is a dispute in regard to the true character of a writing evidence de hors the document can be led to show that the writing was not the real nature of the transaction	 but was only an illusory	 fictitious and colourable device which cloaked something else	 and that the appa 175 rent state of affairs was not the real state of affairs. [See Chandi Prasad Singh vs Piari Bedi C.A. No. 75 of 1964	 decided on 16 3 1966	 and Bhagwan Dayal vs Mst. Reoti Devi (supra) ]. This preliminary recital in the deed	 exhibit 39 (as translated by the learned trial judge)	 with due emphasis on the words 'recently ' and 'Vibhaktarahave '	 coupled with the surrounding circumstances and natural probabilities of the case	 definitely raises the inference that sometime in the recent past	 prior to the date of the deed	 exhibit 39	 Ramchandrarao had clearly and persistently intimated to his coparcener	 Narayanarao	 his intention to sever the joint family status and to hold and enjoy his share of the joint family property in severalty. The immediate and inexorable consequence of this intimation was disruption or division of the joint status	 which	 in the eye of Hindu Law	 amounted to 'partition '. From that date onwards	 which preceded the date of the deed	 exhibit 39 Narayanarao and Ramchandrarao ceased to be coparceners and held the former coparcenary property as tenants in common. Thus	 at the time of execution of the deed exhibit 39	 the joint family status did not exist; it had already been put an end to by Ramchandrarao 's intimation to Narayanarao	 of his intention to divide and separate. If that be the true position	 it was not open even to Ramchandrarao	 much less to Narayanarao	 to nullify the effect of the communication of the former 's intention which had resulted in severance of the joint status	 by revoking or withdrawing that communication. Ramchandrarao could not get back to the old position by mere revocation of the intention. A coparcenary is purely a creature of Hindu Law; it cannot be created	 or recreated after disruption	 by the act of par ties	 save in so far that by adoption a stranger may be introduced as a member thereof or in the case of reunion. [See paragraphs 214 and 325 of Mulla 's Hindu Law and this Court 's decision in Puttorangama vs Ranganna; Bhagwan Dayal vs Mst. Reoti Devi (supra).] There is hot evidence that after the severance of the joint family status	 there was a reunion. As before the High Court	 here also	 an argument was raised that the preliminary recital in the deed	 exhibit 39	 being qualified	 furnishes little or no evidence for a finding that Ramchandrarao had declared and intimated in clear and unambiguous terms his intention to sever the joint family status. 176 We are unable to accept this argument. It has to be borne in mind that this document has been let in evidence more than 70 years after its execution. Narayanarao and Ramchandrarao and all others who might have given evidence with regard to the circumstances of this recital in particular	 and the deed in general	 are long deed and gone. There is no dearth of authority for the proposition that in such a situation	 it is permissible to draw reasonable inferences to fill the gaps or details obliterated by time. [See Chintamanibhatia Vankat Reddy vs Rani of Wadhavan; Sree Sree Iswar Gopal Jien Thakur vs Pratapmal Bagaria. The preliminary recital in the deed	 therefore	 assumes importance. Read in the light of the surrounding circumstances and in the perspective that the 'Desgat ' land was partible coparcenary property of the two brothers	 each of whom had an equal interest therein and an equal right to get his share divided and thereafter enjoy it in severalty	 this recital establishes with a preponderance of probability	 that sometime before the execution of the deed	 exhibit 39	 Ramachandrarao had communicated to his brother	 in clear	 unmistakable terms his intention not only to separate in residence and user and put an end to commonsality	 but also to sever the unity of ownership and enjoy his share in severalty. The result was division of the joint status. Once it is found that the division of the joint status preceded the execution of the deed	 exhibit 39	 then the disposition made thereunder could only be a step towards the implementation of that division and in recognition of Ramchandrarao 's right to have his share	 wholly or partly demarcated and specified for separate enjoyment as an absolute and exclusive owner thereof. While giving the land measuring 118 or 120 acres to Ramchandrarao in recognition of the latter 's equal right in the Desgat	 Narayanarao had no power to impose the futile condition that the land was being given to Ramchandrarao and his male lineal descendants for maintenance. As already discussed	 this insertion by the executant from an ulterior self serving motive was devoid of substance; it could not be attached any greater importance and realty than the phantasmic assumption	 from which it was conjured up: a fortiori	 when in the deed	 exhibit 39	 there is no stipulation that in the event of Ramchandrarao 's male line becoming extinct	 the land would revert to the 'Desgat '	 and Narayanarao or his descendants would have a right of re entry. 177 We are in agreement with the trial court that the expressions "Potgi" (maintenance) or "Nirwahkrit" in the deed cannot be construed as conferring an estate with restricted rights of 'ownership '	 limited to the lifetime of Ramchandrarao and his linear male descendants. The deed evidence a permanent transfer or allotment of about 118 or 120 acres of land to Ramchandrarao to be enjoyed from generation to generation to the entire exclusion of Narayanarao and his descendants. In terms	 Narayanarao did not reserve any right of reversion in favour of himself and his branch in any circumstances. Irrigation rights also with regard to the land transferred or allotted under this deed	 were divided. It was further provided that from the date of the deed	 payment of Joodi to the Government in respect of this land	 shall also be the exclusive liability of Ramchandrarao and his descendants. The inference that this land	 measuring about 118 acres was given to Ramchandrarao in partial implementation of division of joint family status or partition	 receives further confirmation from the following circumstances: (a) From the date of the deed	 exhibit 39	 till Ramchandrarao 's death in 1955	 for a period of about 53 years	 the lands disposed of by the deed	 throughout remained in the full	 exclusive and uninterrupted enjoyment of Ramchandrarao. The relevant entries in the revenue records during this period	 also	 stand exclusively in his name as owner in possession thereof. (b) After the abolition of Watans in 1951	 Ramchandrarao alone applied for regrant of this land in his favour	 under the Watan Abolition Act. The plaintiffs were at all material times	 admittedly aware that Ramchandrarao had applied for the regrant of this land exclusively in his favour	 but they never objected	 and tacitly assented to the same. On the other hand	 the plaintiffs applied and obtained regrant of the 'Desgat ' lands (other than those which were the subject of the deed	 exhibit 39)	 in their favour to the exclusion of Ramchandrarao. In the light of the above discussion	 we are of opinion (i) that there was partition or division of the joint family status sometime prior to the execution of deed	 exhibit 39	 and (ii) that the disposition of about 118 or 120 acres made under that deed was	 in substance an absolute allotment of that land to Ramchandrarao	 towards implementation of that division or partition in recognition of the latter 's right to have his share demarcated by metes and bounds to be enjoyed exclusively in severalty. Point No. 1 is thus found in favour of the appellant. In view of the above finding that the suit property was the separate	 divided 178 property of Ramchandrarao at the date of his death	 and under the traditional Hindu Law	 would go by succession to his daughter	 the appellant herein	 to the exclusion of the plaintiff collaterals	 it is not necessary to decide Point No. 2 canvassed by the appellant. In the result	 for all the reasons aforesaid	 we allow this appeal and dismiss the plaintiffs suit with costs throughout. P.B.R. Appeal allowed.

Summary:
Ever since 1933	 a cattle fair called Nagar Cattle Hat is being held on Saturday every week by the Nagar Quorania Junior High Madrassah. Since 1974	 respondent No. 6	 a club called Prabartak Parishad set up a parallel cattle fair at Sherpur	 about two kilometres away from the site of Nagar Cattle Hat on every Saturday	 known as Sherpur Cattle Hat. The holding of two rival cattle fairs on the same day gave rise to feeling of rivalry couple with tension and this frequently led to violent conflicts and skirmishes between the two rival groups. Upon a representation made to him	 the District Magis trate	 Murshidabad caused an inquiry to be held	 and held that holding of the two cattle fairs on the same day created serious law and order problem and accordingly directed holding of the hats on two different days for preservation of public peace and tranquility. a writ petition filed by the respondent No. 6 the High Court struck down the order of the District Magistrate on the ground that no such direction could be issued by him as the competent authority was the Khargrar Panchayat Sami ti. In compliance with the directions made by the Court	 the Panchayat Samiti passed a resolution that the Nagar Cattle Hat run by Nagar Quorania Junior High Madrassah would be held on Saturday and the Sherpur Cattle Hat run by Prabartak Parishad would be held on Friday. 1208 Respondent No. 6 filed another writ petition challenging the said resolution. A Single Judge quashed the resolution of the Panchayat Samiti on the ground that it acted in breach of the rules ' of natural justice while reserving liberty to the Panchayat Samiti to come to a decision afresh after affording an opportunity to respondent No. 6. The appeal preferred by the Panchayat Samiti was admit ted	 but the Division Bench declined to grant stay and directed that the Panchayat Samiti should. comply with the order of the Single Judge. Consequently	 the Panchayat Samiti issued notices to the contending parties requiring them to submit their claims for consideration. The Panchayat Samiti after considering the claims of both parties and the material record	 passed a resolution that the Nagar Cattle Hat would be held on Saturday every week and the Sherpur Cattle Hat would be held on Friday	 and directed the Execu tive Officer to incorporate such a condition in the licence granted to the two organisations for holding the cattle fairs on these days. Again	 respondent No. 6 filed a writ petition challeng ing the resolution dated April 12	 1985. A Single Judge dismissed the writ petition. Respondent No. 6 then moved the Division Bench for restraining the Panchayat Samiti from giving effect to the said resolution. The Division Bench quashed the resolution dated April 12	 1985 holding that although in terms of section 117 of the Act	 the Panchayat Samiti was vested with the power of granting a licence for the holding of a hat or fair	 by the framing of rr. 7	 8 and 9 of the West Bengal Panchayat (Samiti Administration) Rules	 1984 the power of the Panchayat Samiti is confined to making provision for maintenance of sanitation	 health and in the market area which is the essence of the power under section 117	 and further that in the absence of a provision in the rules in that behalf it had no power to specify a day on which such hat or fair should be held. Allowing the Appeal	 HELD: 1. The view taken by the High Court that although the Panchayat Samiti was vested with the power to grant a licence for the holding of a hat or fair under section 117 of the West Bengal Panchayat Act	 1973	 yet it had no consequential or incidental power to specify a day for holding of such hat or fair	 is manifestly erroneous. [1213C D] 2. The power to grant a licence for the holding of a hat or fair under section 117 of the Act necessarily carries with it the power to specify a day on which such hat or fair shall be held. Such power to specify a day must be held to be a power incidental or consequential upon the principal power of issuing a licence under section 117 of the Act for holding of a hat or fair. [1214H; 1215A] 1209 3. The rules or the absence of it do not detract from the substantive power conferred by a statute. [1215A B] 4. The essence and content of the power of a Panchayat Samiti under section 117 of the Act is issuance of a licence for the holding of a hat or fair and not mere maintenance of sanitation	 health and hygiene as held by the High Court. [1215B] 5. It is well accepted that the conferral of statutory powers on local authorities must be construed as impliedly authorising everything which could fairly and reasonably be regarded as incidental or consequential to the power itself. [1213F G] 6. The doctrine of ultra. vires is not to be applied nar rowly. [1214B C] De Smith 's Judicial Review of Administrative Action	 4th edn.	 p. 95; HWR Wade 's Administrative Law	 5th edn.	 p. 217; Craies on Statute Law	 6th edn.	 p. 276; Attorney General vs Great Eastern Railway	 ; ; Baro ness Wenlock vs River Dee Co.	 ; V.T. Khanzode & Ors. vs Reserve Bank of India	 ; and State of Uttar Pradesh vs Batuk Deo Pati Tripathi & Anr.	 	 relied upon.