Principal               -       Rs.     59.69 lakhs
        Interest                -       Rs.     71.45 lakhs
                                        ---------------------
        Total                   -       Rs.    131.14 lakhs
                                        ---------------------
The Government of A.P., vide notification No.80 published in the A.P.Gazette No.28A dated 11-8-1988 have declared the loans and advances and other sums due to the APIDC to be recovered as arrears of land Revenue U/s.58 A of A.P. Revenue Recovery Act. The Corporation has decided to initiate action under R.R.Act against the guarantors for recovery of above dues. You are therefore hereby called up on to pay the above stated amount at an early date.

You are further informed that if you are disputing the correctness of the amount, you must state the reasons and the basis on which you are disputing the correctness of accounts. Further, if you wish to verify the accounts of the corporation you may do so within 15 days from the date of receipt of this notice.

You are hereby informed that if no reply is received within the above stipulated period, it will be deemed that you are not disputing the facts stated above and further action as per the rules will be taken for realization of dues.


K. Raja Rao vs A.P. Industrial Development ... on 4 January, 2013

for A.P. INDUSTRIAL DEVELOPMENT CORPORATION LTD, Sd/- x x x EXECUTIVE DIRECTOR."
From a perusal of the above letter, it is clear that for the first time a demand was made against the petitioner and no time was prescribed for payment of the amount and straightaway the Corporation was inclined to initiate proceedings under the Revenue Recovery Act.
21. To the above demand, the petitioner denied his liability by letter dated 20.5.1996. It would be appropriate to quote the letter, which reads thus:
 " K. Raja Rao B.Tech(CPE) May, 20, 1996 To The Executive Director, A.P.Industrial Development Corporation Ltd., Parishram Bhavan, Basheerbagh, Hyderabad.
Sir, I have received your letter No.ED(T)RRD/RDL/466/96 dated 22-03-1996 on 22- 04-1996 at your office and I am herewith submitting my reply to your notices.

1. The allegations made in your notice are distortion of facts. I have joined as a Director of M/s. Rama Organics Pvt., Ltd., in place of Dr.A.K.Chatterje. At the time of joining as Director in 1988 I have given a personal guarantee on 17-08-1988 to you. The Directorship of Rama Organics Pvt., Ltd., and surety ship are co-terminus.


2. Long after the account became sticky the unit was auctioned by S.E.C under Section 29 during the end of 1993. Subsequently, you have sent a notice to Dr. A.K. Chatterjee on 29-07-1994 as a Guarantor for recovery of the balance amount and you have choses to release Dr. A.K. Chatterjee from the suretyship vide your Letter No.GM(LHA)/RoPL/APIDC/4826/94 dated 25-11-1994, for which the reasons are best known to you. Dr. A.K. Chatterjee was released on 25-11-1994 from the suretyship. On 16-10-1989 I have retired from the Directorship and relieved from my personal guarantees by the Board and the same was informed to you by my letter dated 16-04-1990 informing you that I am no longer concerned with the Directorship and suretyship by the M.s Rama Organics Pvt. Ltd.,. The Registrar of Companies was also informed. As already stated above I ceased to be a guarantor from 16-10-1989 itself. I have been writing letters to you to that effect, denying my liability. In my place Col. K.S. Rao (Retired) has been inducted as Director and he also executed documents as Surety in my place. Instead of pursuing the remedies against Col. K.S.Rao (Retired) you have chosen to issue notice to me. By virtue of being a Director, a person become surety. Once a person retires as Director he ceases to be surety. More over, as long as Dr. A.K. Chatterjee continued as Guarantor till he was released, the question of my self becoming guarantor does not arise i.e., till 25th November, 1994. According to your conduct I am nothing to


till 25th November, 1994. According to your conduct I am nothing to do with suretyship. Hence, it is not permissible under law to reply on the surety bond executed by me in August, 1988. It is nominal sham and un enforceable.


3. You have vitiated the terms of the surety bonds executed by me. As the State Government undertaking established for the growth of Industries, you have to act in accordance with the terms of surety bond.

4. You have kept myself in utter darkside by directly dealing with the company M/s Rama Organics Pvt. Ltd., quite prejudicial to my interest.

5. Even assuming without admitting that I am still a guarantor to M/s. Rama Organics Pvt., Ltd., even after my retirement as director, your claim against myself is hopelessly time barred. Suffice it to say that the account of M/s Rama Organics Pvt. Ltd., has turned out to be sticky, irregular and out of order in 1988 itself. M/s Rama Organics Pvt. Ltd., has become a chronic defaulter in making payment to you in 1989 itself. Nothing prevented you to pursue against the guarantors in 1989 itself. All the while you have maintained stoic silence. Long after a period of six years, you have chosen to issue a notice calling upon to pay the outstanding dues even though you have recalled the loan on 28-03- 1990 itself.

6. You have issued a notice on 28-03-1990 to M/s Rama Organics Pvt. Ltd., that Rs. 75,81,000/- was the outstanding dues as on 28-03-1990 and that you would be taking steps for recovery by way of sale under Section 29 of the State Financial Corporation Act, 1951. I am in no way liable to pay any amount to you. Your claim against me is untenable and not maintainable in Court of law.


7. Except thrusting the company that you would take steps for recover of the amounts through your notice dated 28-03-1990 and another letter dated 28-05- 1992, you have neither taken steps under Section 29 of SFC Act, not filed any Civil Suit.

8. Now in your notice dated 22-03-1996 you have chosen to say AP State Financial Corporation has sold to unit and Rs.50.00 lakhs has been paid to you. It is a violation of terms of survey bond that there is no whisper about the sale conducted by SFC in those notices. Now, for the first time you have chosen to say SFC sold the unit.

9, Needless to state that having issued recall notice on 28-03-1990 and 28- 05-1992 you have chosen to threaten me after adjusting payment made by SFC. It Is a clear violation of law. Your notice is silent about your earlier sale notices. Hence, it is crystal clear that from 28-03-1990 you have not taken any steps. For the first time you have chosen to issue notice to me stating that I am a guarantor, the ealier notices issued to the Rama Organics Pvt., Ltd., and copy was marked to me.
10. I further state that invoking revenue recovery act is opposed to law you can not enforce a claim against me which is hopelessly time barred and un- enforceable. Unless and until the claim is proved and to be valid and to be intimate within three years from the date of recall of loan against the main borrowers namely M/s. Rama Organics Pvt., Ltd., you can't claim any amount by revoking revenue recovery Act.

 I hereby request you to withdraw the notice and advise desist from filing any claim either under the revenue recovery act or in any civil court.


Yours faithfully, Sd/- xx xx K. Raja Rao.

22. In his reply the petitioner has pointed out about the failure of the Corporation to take expeditious steps for recovery of the amounts pursuant to the letter dated 28.3.1990 and 28.5.1992 when the company was found to be irregular in payment. It was clearly pointed out in the reply that since no steps have been taken under the Revenue Recovery Act from 28.3.1990 when the liability was crystallized, the letter dated 22.3.1996 seeking to initiate the proceedings under the Revenue Recovery is without jurisdiction, the liability being time barred and unenforceable.


Under the first deed of guarantee, though the Corporation has the option to proceed against the petitioner when the principal borrower has committed default as also to make a demand under the said deed of guarantee, it has not chosen to do so, but only proceeded against the borrower under section 29 of the SFC Act. On 22.5.1996 the Corporation addressed letter to the District Collector, Hyderabad to initiate action under the Revenue recovery Act and on 15.7.1996 the Mandal Revenue Officer, Golconda issued distraint warrant, but, it appears that no steps have been taken and again notice was given on 23.6.1998 to the petitioner for payment of Rs.135.33 lakhs and thereafter no steps appears to have been taken and finally the impugned notice dated 6.1.2000 was issued by the 2nd respondent. From the above, it is clear that though the Corporation issued notices to the principal debtor from time to time for sale of the Unit of the Company no concrete steps have been taken for realization of the debt due by sale of the Unit of the Company and it could realize the debts to the extent of Rs.61.00 lakhs only on 29.12.1993. Nothing prevented the Corporation to proceed against the guarantors for realization of the debt due simultaneously when the proceedings under section 29 SFC Act are taken up against the Company for sale of the Unit by issuing a demand for payment of the amount due. It failed to initiate the steps for realization of the debt from the guarantor within the period of limitation of three years ie from 28.3.1990 when the liability of the petitioner was crystallized. Even if we take the letter dated 28.5.1992 into consideration as the date when the debt was crystallized the demand made against the petitioner on 22.3.1996 is clearly time barred. Article 137 of the Limitation Act provides


is clearly time barred. Article 137 of the Limitation Act provides that any other application for which no period of limitation is provided elsewhere in the Act, it provides that the period of limitation begins to run when the right to apply accrues. The Supreme Court in MAHARASHTRA STATE FINANCIAL CORPORATION v. ASHOK K. AGARWAL AND OTHERS held that the liability of the sureties would crystallize when the proceedings under the State Financial Corporation Act would be initiated for sale of properties of the borrower company. Therefore, whether we take the date of crystallization of debt as 28.3.1990 or 28.5.1992 the letter of demand issued to the petitioner on 22.3.1996 is clearly beyond the period of limitation.


23. It appears that subsequent to the notice dated 28.3.1990 no steps have been taken for recovery of the amount due by sale of the unit of the Company because again on 28.5.1992 another sale notice was issued for Rs.71,27,180/-. From this it is evident that some amount has been paid to the Company, but the respondents have not placed any material on record evidencing the same. Be that as it may, even assuming that there was some payment made subsequent to 28.3.1990 to the principal debtor and the latter notice dated 28.3.1992 can be treated as the date when the liability of the guarantor was crystallized, even then the notice dated 22.3.1996 seeking to recover the amount due from the petitioner is beyond the period of limitation of three years as no steps have been taken for recovery of the amount from the petitioner within the period of limitation. Right to sue or to initiate proceedings under the Revenue Recovery Act against the guarantor would be alive for a period of three years from 28.3.1990 i.e. upto 28.3.1993 or 28.3.1995 if we take 28.3.1992 as the date when the liability of the petitioner had crystallized. In any event, the notice dated 22.3.1996 seeking to recover the amount from the petitioner under the provisions of the Revenue Recovery Act is beyond the period of limitation and hence cannot be sustained. Even if the letter dated 28.3.1990 is treated as a demand against the petitioner even then the proceedings sought to be initiated by the Collector on 4.6.1996 are beyond the period of limitation.


24. Further, it is only subsequent to 28.5.1992, the unit of the Company was seized on 9.7.1993 and unit was sold out on 29.12.1993. At least after this the respondents should have diligent enough and taken appropriate steps for recovery of the amount from the petitioner, but had slept over the matter and had chosen to issue notice under the Revenue Recovery Act only on 22.3.1996 by which time the right of the Corporation to sue or to initiate proceedings under the Revenue Recovery Act had extinguished. It is only subsequent to 22.3.1996, the letter dated 22.5.1996 was addressed to the District Collector, Hyderrabad to initiate proceedings under the Revenue Recovery Act and therefore the Collector on 4.6.1996 addressed the Mandal Revenue Officer, Golconda to proceed with the matter by attaching the properties of the petitioner and subsequently distraint order has been issued by the Mandal Revenue Officer on 15.7.1996 and after a lapse of more than three years the impugned notice dated 6.1.2000 was issued. All these facts would clearly go to show that as on 22.3.1996 the proceedings sought to be initiated against the practitioner under the Revenue Recovery Act are beyond the period of limitation as no amount of debt legally recoverable from the petitioner is alive as on that date and hence all the subsequent proceedings initiated under the Revenue Recovery Act are void ab initio and cannot be sustained in law. The amount sought to be recovered from the petitioner as on 22.3.1996 is a time barred debt and is unenforceable under the provisions of the Revenue Recovery Act, therefore, the impugned notice is without jurisdiction. The contention of the respondent that since recovery was made on 27.12.1998 by sale of the unit of the Company and since by that time the recovery


by sale of the unit of the Company and since by that time the recovery proceedings were already initiated by issuing a distraint warrant on 15.7.12996, the notice dated 2.1.2000 is within the period of limitation has no merit. In the light of the law laid down by the Supreme Court, as analyzed above, since the liability of the petitioner was crystallized on 28.3.1990, it is not permissible to hold that the proceedings initiated by the Mandal Revenue Officer, Golconda on 4.6.1996 are within the period of limitation.


25. The learned counsel for the Corporation has not placed before us any provision which empowered the Corporation for enlargement of a claim which was legally recoverable but was ceased to be legally recoverable on the date when recovery proceedings are undertaken. The Supreme Court in STATE OF KERALA v. V.R. KALLIYANIKUTT categorically held that all claims which are legally recoverable and are not time-barred on the date when the process for recovery of the amounts by the sale of movable or immovable properties as land revenue was taken up by the District Collector can be recovered under the Revenue Recovery Act. In the instant case, the process for recovery of the amounts by the sale of immovable properties as land revenue was initiated by the Corporation on 22.5.1996 by addressing a letter to the District Collector and the Collector in turn taken up the proceedings by directing the MRO, Golconda to initiate proceedings under the Revenue Recovery Act by letter dated 4.6.1996. Since the debt sought to be recovered by the Corporation is a time barred debt as on 22.5.1996 or 4.6.1996 the proceedings taken up under Section 52-A of the Land Revenue Recovery Act cannot be sustained, consequently the distraint warrant dated 15.7.1996 and the impugned notice dated 6.1.2000 cannot also be sustained.


26. The contention that the proceedings under the Revenue Recovery Act were initiated by reason of the letter dated 4.6.1996 of the District Collector and distraint order dated 15.7.1996 which culminated into the notice dated 6.1.2000 and as such the proceedings are within limitation has no merit. The Supreme Court held that the liability of the sureties would crystallize when the proceedings under the SFC Act would be initiated for sale of properties of the borrower company. As already noticed, in the instant case, the proceedings for the sale of the unit of the borrower company were initiated on 28.3.1990 on which date the liability has been crystallized whereas the proceedings by the Collector under the Revenue Recovery Act were initiated on 4.6.1996. Therefore, when the initiation of the proceedings on 4.6.1996 are itself are barred by limitation, the impugned notice dated 6.1.2000 cannot be sustained. It appears that the authorities of the Corporation have not properly pursued for recovery of the debt and allowed the debt to be time barred. The learned single Judge has not taken into consideration the decisions of the Supreme Court and applied to the case. It may be that the proceedings under Section 29 of SFC Act have been commenced for realization of the dues by sale of mortgaged properties of the principal debtor within the period of limitation, but the learned single Judge failed to note that the proceedings initiated under the Revenue Recovery by reason of the letter dated 22.3.1996 against the petitioner were time barred and without jurisdiction. The liability of the guarantor having been crystallized on 28.3.1990, proceedings under the Revenue Recovery ought to have been commenced within the period of three years therefrom. Therefore, the finding of the learned single Judge that the proceedings for realization of the debt having been commenced for realization of the dues by sale of mortgaged


proceedings for realization of the debt having been commenced for realization of the dues by sale of mortgaged properties within limitation, the further proceedings for realization of the balance amount by taking recourse to the Revenue Recovery Act is continuation of the process of recovery proceedings initiated earlier is not correct. Recovery proceedings from the principal borrower initiated under Section 29 of the SFC Act and the proceedings under the Revenue Recovery Act from the guarantor are different and would commence on different dates. The Supreme Court held that the liability of the surety would crystallize when the proceedings under the SFC Act would be initiated for sale of properties of the borrower. It is not that the Corporation is prevented from proceeding against the petitioner simultaneously or independently by initiating the proceedings under the Revenue Recovery Act or by filing a civil suit within the period of limitation. Having failed to do so, the Corporation cannot proceed under the Revenue Recovery Act for recovery of a time barred debt which is legally unenforceable.


27. The contention of the Corporation that no period of limitation has been prescribed for recovery of the dues of the Corporation for instituting the proceedings under the Revenue Recovery Act has also no merit. Section 52-A of the Revenue Recovery Act only equates the debts of the banks, Governmental corporations, as stated above, as akin to land revenue and are recoverable on par with land revenue. Thus, the recovery of land revenue as well as the dues falling under Section 52-A of the Revenue Recovery Act stand on the same footing and can be recovered only in accordance with the provisions of the Limitation Act, as has already been held by the Supreme Court in STATE OF KERALA v. V.R. KALLIYANIKUTTY.


28. Another contention advanced on behalf of the respondent- Corporation is that as on 22.3.1996 the debt recoverable against the principal debtor is alive, therefore, the proceedings initiated against the petitioner under Revenue Recovery Act are in continuation of the same and thus within the period of limitation. There is no merit in the contention. It may be that the debt against the principal debtor may be alive as the same were initiated against him within the period of limitation, but since the respondent failed to initiate the proceedings against the guarantor within the period of limitation the liability against him having been crystallized on 28.3.1990, the proceedings initiated against the petitioner under the Revenue Recovery Act are barred by limitation and without jurisdiction. As already stated the Supreme Court in MAHARASHTRA STATE FINANCIAL CORPORATION v. ASHOK K. AGARWAL AND OTHERS categorically held that the liability of guarantor would crystallize when the proceedings under the SFC Act are initiated for sale of the properties of the borrower. The properties of the borrower herein were sought to be proceeded for sale under Section 29 of the SFC Act on 28.3.1990. Therefore, the limitation against the guarantor start to run from 28.3.1990 and would expire by 28.3.1993, hence the proceedings sought to be initiated under the Revenue Recovery Act by letter dated 22.3.1996 of the respondent is without jurisdiction.


29. In GODAVARI PLYWOODS LTD. HYDERABAD v. UNION OF INDIA on which reliance has been placed by the learned counsel for the respondent, Section 11-B of the Central Excise and Salt Act which was introduced by Amendment Act 25 of 1978 providing for refund of excise fell for consideration. Under the amended Section 11-B of the said Act refund of excise duty can be sought for within a period of six months. The question is whether High Court can grant refund beyond six months and upto three years as per the limitation provided under the Limitation Act. This Court on an analysis of the settled position of law held that the technical rules of the procedure like limitation though has no application in its direct sense, the prescription of limitation for suit provided under the Limitation Act, 1963 has been adopted as sound principle as analogy to grant relief under Article 226. The extent and manner of interference is for the Court to decide depending on the facts and circumstances of each case and held that no relief can be granted contrary to the amended law. In our view this decision has no application to the facts on hand. The question that arose for consideration herein is whether the proceedings initiated under the Revenue Recovery Act are within the period of limitation, as such, the question of maintainability does not arise.

 In the light of the discussion made above, Point No.1 is answered in the affirmative.


30. Point No.2: The petitioner resigned as Director of the Company on 6.10.1989 and requested to relieve him immediately and also requested to take steps to relieve him from all his personal guarantee/undertakings provided to various financial institutions. In the Board meeting of the Company held on 16.10.1989 the request of the petitioner was accepted and a resolution was passed by the Board that he will be relieved from all guarantees/undertakings furnished to APIDC, IDBI, SFC, Bankers subject to the approval of the financial institutions. The Managing Director was authorized to take necessary steps to relieve him immediately from all his personal guarantees/undertakings with all institutions by providing suitable guarantees undertakings to them and the Executive Director Sri A. Nageswara Rao was authorized to file Form No.32 before the Registrar of Companies. In the place of the petitioner one Lt. Col (Retd.) K.S. Rao was inducted as a director of the Company and to furnish all the guarantees /undertakings to the financial institutions, Bankers which were earlier furnished by the petitioner herein and the Executive director was authorized to file Form kNo.32 before the Registrar of Companies. A resolution was also passed for transfer of shares valuing Rs.4,80,000/- from the petitioner to other directors and the newly inducted director K.S.Rao subject to the approval of APIDC/IDBI. But, it appears that no action has been taken by the Corporation to relieve the petitioner from all his personal guarantees/undertakings given by him to the financial institutions/bankers. No material has been placed on record to that effect. No material has also been placed on record whether any guarantee deeds were executed by the newly inducted director Lt. Col. K.S. Rao like the petitioner herein. In the absence of the same, it would be difficult to conclude that the petitioner


the petitioner herein. In the absence of the same, it would be difficult to conclude that the petitioner has been relieved of his liability to the Corporation basing on the resolution of the Board of the Company. It may, however, be noted that the resolution of the Board of Directors is not final as the resolution of the Company to relieve the petitioner from his liability is subject to the approval of the financial institutions.


31. However, by letter dated 25.11.1994, the Corporation relieved Dr.A.K. Chatterjee in whose place the petitioner was inducted as Director earlier from the guarantee obligations executed by him in favour of the Corporation for the loan extended to the Company on the ground that the petitioner has executed his personal guarantee in favour of the Corporation for the loans extended to M/s Rama Organics Pvt. Ltd. Interestingly, such a letter relieving the petitioner from his liability to the Corporation was not issued by the Corporation though in fact a resolution was passed by the Board of Directors in their meeting held on 16.10.1989 to relieve him from the liability. Probably, this may be because Lt. Col. K.S. Rao who was inducted as director in place of the petitioner might have not furnished any deed of guarantee in favour of the Corporation. As already stated no material has been placed on record by the petitioner to show that in fact Sri K.S. Rao has furnished deed of guarantee but the Corporation has failed to relieve him of the liability. So long as the petitioner is not relieved of his personal liability to the Corporation, the petitioner cannot be said to be absolved of his liability to the Corporation. It is not for this Court to examine for what reasons the Company has not obtained guarantee deeds from the newly inducted director Lt. Col. K.S. Rao though such deed of guarantees were obtained from the petitioner when he was inducted as director in the place of Dr.A.K. Chatterjee. If he had any grievance in this regard, he should have taken appropriate proceedings before the appropriate forum to relieve him from his personal guarantee given to the Corporation. Having not done so, the petitioner cannot be permitted to contend that in view of induction of Col.K.S.Rao in his place and on his resignation having been accepted by the Board of directors by the resolution dated 16.101989 he is relieved of his liability to the Corporation.


directors by the resolution dated 16.101989 he is relieved of his liability to the Corporation. Similarly, the contention of the petitioner that till Dr. A.K. Chatterjee is relieved on 25.11.1994 he is not liable for payment of the amount due cannot also be accepted. Once the petitioner has executed guarantee deeds on his induction in place of Dr. Chatterjee and holding the field, it is only the petitioner who is liable for the amount till he is relieved of his liability and it cannot be said that the guarantee deeds are deemed to have been revoked consequent on the acceptance of the resignation. Further, no action has been taken by the petitioner after Dr.A.K. Chatterjee was relieved of his liability. If the petitioner really believes that Dr.A.K. Chatterjee is also liable till he was relieved of the liability he ought to have taken appropriate steps claiming that relieving of Dr.A.K. Chatteriee is not in accordance with law or the terms and conditions of the guarantee or any other provision of law.


32. The contention of the petitioner that since the guarantee was furnished by him as a guarantor the same is co-terminus with the directorship has also no merit. The guarantee being personal in nature, his liability to pay the amount continues notwithstanding with the termination of his directorship with the Company. Further, there is nothing in the deed of guarantee that though it was executed in the personal capacity of the petitioner the same would stand terminated on the termination or resignation of the petitioner as director of the Company.
 We answer the point No.2 accordingly against the petitioner.


33. Point No.3: We have earlier taken note that this Court in B.C. MULAJKAR v. STATE OF ANDRA PRADESH held that the provisions of the Revenue Recovery have to be interpreted in such a manner so as to accord with the principles of natural justice and that the party sought to be proceeded against should at least have the minimum safeguard of having an opportunity to know the basis and the material on which the liability is sought to be imposed upon and to rebut the same by placing necessary material in that behalf. As rightly pointed out by the learned counsel for the petitioner none of the letters sent to the petitioner indicated what are the dates on which the Company has committed default in payment of the amount due to the Corporation, on what dates payments were made, what was the amount due towards principal and interest from to time to time etc. The various letters placed on record show different amounts and it is not clear from those on what dates the Company paid the amounts to the Corporation. The letter dated 22.3.1996 has merely indicated that an amount of Rs.59.69 lakhs is due towards principal and Rs.71.45 lakhs towards interest totaling to Rs.131.14. There are no details as to how the said amounts were arrived at. Therefore, there was no proper determination of the liability of the petitioner. The learned single Judge in his order referred to the letter dated 22.3.1996 of the Corporation permitting the petitioner to verify the accounts of the Corporation but the petitioner has failed to do so. In our view, mere verification of the accounts of the Corporation would not be enough to arrive at the liability. The Corporation was under an obligation to determine the liability of the petitioner duly stating the amounts paid by the Company towards principal and interest from time to time and the balance due as on a particular date. The Corporation has not furnished such statement of details in any of the letters communicated to the petitioner. In the


Corporation has not furnished such statement of details in any of the letters communicated to the petitioner. In the absence of the same, it would be difficult for the petitioner to know exactly what the amount due was on a particular date and whether the amount sought to be recovered was legally recoverable date and not a time barred debt. Even the proceedings initiated under the Revenue Recovery Act have not indicated the details determining the liability of the petitioner. Therefore, no opportunity was afforded to the petitioner to know the basis and the material on which the liability is sought to be imposed upon him and to rebut the same by placing necessary material in that behalf before the concerned authority. We are, therefore, of the view that there was no proper determination of the liability of the petitioner to the Corporation and he was deprived of an opportunity to rebut his liability in full and to what extent the Corporation is justified in making him liable for the amount unpaid by the Company by virtue of the deed of guarantees executed by him. Therefore, this point is answered in favour of the petitioner.


33. Though we have held under Point No.2 that the petitioner is not relieved of his liability to the Corporation, in view of our finding on Point No.1 that there was no legally enforceable debt which can be recovered from the petitioner as on the date notice was issued to the petitioner on 22.3.1996 or even on 4.6.1996 when the proceedings were initiated by the District Collector under the Revenue Recovery Act and the finding on Point No.3 that there was no proper determination of liability of the petitioner to the Corporation, the Writ Petition is liable to be allowed and the proceedings initiated under the Revenue Recovery Act are liable to be set aside as without jurisdiction.

34. In the result, the Writ Appeal is allowed. The order of the learned single Judge is set aside. Consequently, the Writ Petition is allowed. The distraint warrant dated 15.7.1996 of the Mandal Revenue Officer, Golconda and the consequential notice dated 6.1.2000 are set aside. There shall be no order as to costs.

PINAKI CHANDRA GHOSE, CJ VILAS V. AFZULPURKAR, J January 4th , 2013


Voleti Venkata Rama Rao vs Kasapragada Bhaskararao And Ors. on 29 November, 1960

JUDGMENT Satyanarayana Raju, J.
 (1)     This appeal is against the judgement and decree of the court of the Subordinate Judge, Amalapuram, in O. S. No. 44 of 1953, and  relates to the succession to the immovable properties of late Kesapragada Bhaskararao, a Brahmin Karnam, who died on the 29th November,  1903, without issue, but leaving a widow.

      (2)  The suit was instituted on the 15th  April 1953, by Voleti Venkata Ramarao, the adopted son of the step-sister of  Bhaskara Rao for the recovery of possession of the properties mentioned in the plaint A and B schedules and for future profits.

      (3)  The following  genealogical table will be useful in explaining the relationship of the parties to this litigation:
  KESAPRAGADE VENKANNA

-------------------------------------------------------------------------------------------------------------

                             Perraju
                                                                       China Subbarayudu

              -------------------------------------                  -----------------------------------------------

    Venkayya                       Veeraju=Mahalakshma        Ramayya      Perraju      Gopalam   Subbarao

                                                             (died)
                          (died)                              (died)        (died)

            ----------------------------------

    Vedamma (1st wife)        Kantamma (2nd wife) (died in 1940)

     Kamamma (wife of          Bhaskararao (1st  male-holder)

           China  Venkatarao              (died on 29-11-1903) Seshamma (died on 2-10-1952)

            died in 1945)


died in 1945)

    Venkataramarao (Plff).   Rajeswararao (alleged adoped son) (died in 1950)

                                                Bhaskararao (alleged adopted son) (1st defendant).

      The case of the contesting defendants  is that pursuant to an authority conferred by the late Bhaskararao in a document executed  by him on the day of his death,  Seshamma, his widow, adopted one Rajeswararao, her sister's son.  In or about May, 1904.  Rajeswararao died in 1950.  It is said that  adopted the present 1st defendant.  Seshamma died on the 2nd October, 1952.

      (4)  The plaintiff contended that the late Bhaskara Rao had made no will; that Seshamma did not in fact, adopt Rajeswararao; and that even if the adoption was true, it was invalid inasmuch as Seshamma had not attained the age of discretion on the date of the alleged adoption.

      (5)  After a consideration of the voluminous oral and documentary evidence adduced by the parties, the trial court found against the plaintiff on all these points and dismissed the suit.  In this appeal the plaintiff challenges the correctness of the findings reached by the lower court.

       (6)  The substantial questions arising for determination in this appeal are:-

      1.  Whether the will is true, valid and binding on the plaintiff?

      2.  Whether the adoption of the late Rajeswararao by Seshamma is true and whether the said adoption is valid?


We will now consider these questions seriatim.


(7) The first of the questions is whether the will, said to have been executed on the 29th November, 1903, by Bhaskararao is or is not a genning will. It provisions are substantially these: After his death, his widow, Seshamma, should adopt a boy of her choice whenever desired by her, for the perpetuation of his family line and for enjoying as his Karta after his lifetime all his movable and immovable properties. By the second clause of the will it was provided that in case any misunderstandings arose between his wife, the boy to be adopted by his and his mother, all the movable and immovable properties, lands and the house possessed by him, should be divided into four equal shares by metes and bounds and three such shares should be enjoyed by his wife and the adopted son and the fourth share by his mother freely throughout her lifetime as she pleased and after her lilfetime, the share enjoyed by her should pass either to his adopted son, or to his wife, if his wife had not adopted anybody by that time Clause 3 of the will provides that out of his property four acres of land should be separated and given to his sister Kamappa, after his lifetime. Clause 4 provided that his wife, Seshamma should continue to pay the maintenance amounts to his junior maternal aunt and father's step mother as was being done by him till then. Clause 5 provided for the payment of taxes by the respective individuals on their respective lands.
 (8) Clause 6 reads:


(8) Clause 6 reads:
 "It is also provided that the outstandings due by me shall be discharged form the said immovable property belonging to me. It is provided that in addition to the said four acres to be given out of their inam land to my sister, Voleti Kamappa, as mentioned in the said third paragraph, another four acres of Inam land shall be added and given so that she shall be in enjoyment of Ac. 8.00 cents (either acres) of 'Dampa' Inam land, in all as she pleases and that she will get the same separated after my lifetime. The said Kamappa hereself shall pay the taxes payable on this to the Government, get it entered in names and be in enjoyment of it. Till my wife attains majority, my mother will be her guardian. All the above terms shall take effect after my lifetime".
 (9) The document was signed by Bhaskararao and was attested by eleven witnesses, five of whom belonged to the Kesapragada family. The scribe of the document was Vakkalanka Bhaskararao. The will was presented for registration on the 4th December 1903, by Kesapragada Kantamma, the mother of the deceased and guardian of Seshamma. It was published in the District Gazette and in the village to the effect that if there were any persons objecting to the registration of the will, they should appear on the date of the enquiry with evidence and documents.


(10) Kesaparagada China Subbarayudu, the paternal grand uncle of Bjaskararao, filed a petition on the 15th January 1904, contending the Bhaskararao did not execute the will prior to his death. The registration officer duly made an enquiry at which the presentant and the objector were represented by their respective counsel. Seven out of the 11 attesting witnesses and the scribe were examined at the enquiry. Five attesting witnesses had seen the testator sign the document, and three of them stated at the enquiry by the registration officer that they were asked by the testator to attest the will. China Subbarayudu, who objected to the registration of the will, cross-examined the witnesses. Though several adjourments were granted to him to produce his witnesses, he eventually did not produce anay evidence. On a consideration of the evidence adduced before him and all the circumstances of the case, the registration officer felt satisfied that the testator executed the will while he was in a sound disposing state of mind. He made the following endorsement on the document: (1) that he was satisfied that in accordance with the evidence of the witnesses who had signed the document, that the testator executed the will; (2) that the testator died subsequently; (3) that the person who presented the will for registration was empowered to present it as per S. 40 of the Registration Act.
 (11) Pursuant to the authority conferred on her by this will, Seshamma adopted Rajeswararao, her sister's son, in or about May 1904. We shall presently consider the evidence bearing on the factum of adoption; but before doing so, it is necessary to deal with the evidence bearing on the truth of the will.


(12) We have already mentioned the fact that Bhaskararao was during his lifetime holding the office of karnam of the village of Annampalli. After his adoption, Rajeswararao was registered as the office-holder. China Subbarayudu preferred objections to the appointment of Rajeswararao as the karanm before the Sub-Collector, Godavari. The Sub-Collector rejected the objections of China Subbarayudu and confirmed the appointment of Rajeswararao. On the 7th November, 1906, China Subbarayudu as father and guardian of his minor son, Venkata Surya Gopalam filed a summary suit before the Sub-Collector, Godavari for setting aside the said order of appointment.
 While the summary suit was pending, China Subbarayudu and his undivided sons, Ramayya, Perraju, Venkata Surya Gopala, and Venkata Subbarao executed a release deed Ex. B.6 dated the 25th March 1907, in favour of Rajeswararao and his adopitve mother, Seshamma, represented by their guardian, Kantamma. Under this registered deed of release, China Subbarayudu and his sons gave up their contention that the will was not genuine and agreed that the adoption of Rajeswararao made by Seshamma was valid. Rajeswararao and his adoptive mother, Seshamma, represented by their guardian, Kantamma, on the same day executed A.-7 conveying absolutely in favour of China Subbarayudu and his sons land of an extent of Ac. 16-29 cents described in the schedule appended to the deed.


(13) It may be mentioned here that under the will executed by Bhaskararao, an extent of 8 acres of wet land was bequeathed to the plaintiff's adoptive mother, Kamappa executed a deed of settlement, Ex. B. 3 in favour of the plaintiff's three sons and daughter, three of whom, being minors, were represented by theri father, the plaintiff. Under this document, Kamappa settled the vested remainder in an extent of Ac. 12-50 cents, including the 8 acres of land bequeathed to her by her step brother under the disputed will.
 (14) All the attesting witnesses and the seribe of the will are now dead. The defendants, however, examined Mamidipalli Lakshminarayana Charanulu as D. W. 2, who, was 76 years old at the time he gave evidence. One of the attestors of the will, Mamidipalli Ramayya, was his paternal uncle. He identified Kantamma before the Registrar at the time of registration. He stated that he was present when the will was executed by the late Bhaskararao and that the executant was in a sound disposing state of mind at the time. D. W. 3 is another witness examined by the contesting defendants. He was also 76 years old on the date of his deposition. He stated that he and Bhaskararao were classmates in the village school, that Bhaskararao executed a will, that his father attested the will and that at the time of its registration, Bhaskararao was in a sound state of mind. While according to D. W. 2, the will was written at about 4 or 5 p.m., D. W. 3 stated that it was executed at about 10 in the morning.


(15) It is contended by Mr. Sankara Sastri that the evidence of D. Ws. 2 and 3 should not have been accepted, that both of them were interested--D. W. 2 being the brother of the 15th defendant and D. W. 3 being a defendant (73rd defendant ) -- and that both of them had not attested the will. It is stated that there are material discreparcies and gross divergence between their versions. The discrepancies are of an immaterial character which might be ascribed to the lapse of memory on the part of those witnesses. They were giving evidence after the lapse of over half a century. The fact remains that D. W. 2 was aged about 27 years on the date of the will and he played a prominent part in the registration of the document. D. Ws. 2nd 3 gave straightforward evidence and the learned trial judge has no hesitation in accepting their testimony.


(16) Learned counsel for the plaintiff relied upon the non-production of the will as a strong suspicious circumstance against its truth. It was also urged that there being no proof that the original had been destroyed or lost, secondary evidence of its contents could not be adduced. It may be remembered that Ex. B. 9, the registration copy of the will, was obtained as early as 14th December 1906, though the other certified copy, Ex. B. 1, was obtained in 1954. We find that Ex. B. 9 was marked by consent. Assuming that it is open to the plaintiff to raise this objection, even though the document was marked by consent, we have the evidence of D. W. 2 who stated that the original will was lost even by the time of the adoption. It may be noted that the challenge about the due execution of the will is made after the death of Rajeswararao and his adoptive mother Seshamma. Kanthamma is no more. Therefore, all the persons who were connected with the document are no longer available. The 1st defendant is a minor. The challenge from the reversioner, Subbarayudu, was settled in 1907 by the execution of Ex. B. 6, and Ex. A-7, its counterpart, and possibly there was no further apprehension that the will would be assailed at a further date It is, however, urged that there is a recital in Ex. A-11, dated 17th November, 1911, that all the records were handed over by Kantamma to her daughter-in-law; but it is worthy of note that there is no specific mention of the original will having been delivered to Seshamma. There is credible evidence that the original was lost. In the circumstances, we are of opinion that it was within the competence of the trial Judge to receive Ex. B. 9


of opinion that it was within the competence of the trial Judge to receive Ex. B. 9 in evidence. We may also observe that there was no motive in withholding the original of the will.


(17) It was then contended that the 1st defendant ought to have produced in evidence the depositions of those attestors and the scribe of the will who were examined before the registration officer.
 (18) Under Sec. 40(1), the testator, or after his death any person claiming as executor or otherwise under a will may present it to any Registrar or Sub-Registrar for registration. Sec. 41(1) provides that a will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document. Under sub-s. 2 of S. 41, a will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied (a) that the will or authority was executed by the testator or donor as the case may be; (b) that the testator or donor is dead; and (c) that the person presenting the will or authority is under Sec. 40, entitled to present the same.


(19) As already noted, the endorsement on Ex. B-1 made by the registration officer is in the terms of Sec. 40(2). Under Sec. 60, the certificate of registration is to be endorsed after the provisions of Secs. 34, 35, 58 and 59 have been complied with. Sub-s. (2) of Sec. 60 provides that such certificate shall, and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act, and that the facts mentioned in the endorsements referred to in Sec.59 have occurred as therein mentioned. The fact that a document has endorsed on it a certificate of registration is prima-facie evidence that the requirements of the Act have been complied with, and after such endorsement, the burden of proving any act or omission which would invalidate the registration rests on the person who challenges the registration. while it is, no doubt, true that mere registration is not in itself proof of the due execution of a document, the certificate endorsed by the registration officer on the document is admissible to prove that the executant was of sound mind.


(20) There is, as a matter of law, a presumption that the registration proceedings are regular and are honestly carried out. As pointed out by their Lordships of the Privy Council in Munnalal v. Mt. Kashibai, AIR 1947 PC 15 a party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he had was of sound mind and understood what he was about. This presumption can be justified under the express provisions of Sec. 90, since a will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Sec. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about.
 (21) There is no evidence whatsover that Bhaskararao was not in a perfectly normal state. The contention that there is no presumption that the testator, when he made the will, was of sound disposing mind, if accepted, would render it impossible, in most cases, to prove ancient documents.
 (22) It is then urged that while Bhaskararao normally signed his name along with his surname, his purported signature in the will does not contain the surname. This point was specifically raised before the registration officer almost immediately after the execution of the document. Letters were filed by the mother of the testator before the Sub- registrar which did not contain Bhaskararao's signature with the surname and the Sub Register was satisfied that Bhaskararao was in habit of signing his name without the surname.


(23) It is then said that a will is a formal document and the surname would not normally be omitted. for from this being a suspicious circumstance, it invests the document with an impress of truth because if the document had been fabricated, the persons responsible would have certainly seen to it that the signature bore the surname as well.
 (24) The further comment made is that China Subbarayudu was not invited to attest the will. From a narration of the facts already made, it is clear that China Subbarayudu even if he were invited would not have attested the will because it would have adversely affected his interests. Subbarayudu not having been invited to attest the will is a most natural circumstance.
 (25) We may state that the mother-in-law Kantamma, a propounded the will whereunder her daughter-in-law was authroised to adopt. This is an important circumstance bearing on the genuineness of the will. The dispositions under the will are reasonable, natural and proper in their terms. The testator provided for the continuance of the maintenance of the persons who were till then being maintained by him. He provided that his mother should have a life interest in a 1/4th of his sestet. What is more, the testator gave 8 acres to his stepsister the adoptive mother of the plaintiff.
 (26) It has been pointed out by the Privy Council in Jagrani Kunwar v. Durga Prasad ILR 36 All 93 (PC) that in the case of a will reasonable, natural and proper in its terms, it is not in accordance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which, the opposite can be said, namely, that they are unnatural, unreasonable or tinged with impropriety.


(27) Ex facie the will was duly executed and property attested. The agnatic relations of Bhaskararao agreed to the will, and five of his blood relations actually attested it. The execution of this Will is not only not improbable but also probable. As has been pointed out by Lord Watson in Chotey Narain Singh v. Ratan Koer, ILR 22 Cal 519 (PC), in order to prevail against such evidence as has been adduced in the case, an improbability must be clear and cogent and it must approach very nearly to, if does not altogether, constitute, an impossibility.
 (28) On a consideration of the evidence and the material circumstances of the case, we are satisfied that the will was duly executed by Bhaskararao when he was in a sound disposing state of mind and that it is valid and binding.


(29) The next of the questions which arises for decision is with regard to the factum and valldity of the adoption of Rajeswararao. It is difficult to contend that no adoption was in fact made. It was an adoption perfectly suitable in all respects and it was acted upon for a long period of nearly fifty years. When there is lapse of such a long period of time between the adoption and its being questioned. That apart, we have fortunately in this case the evidence of a witness who says that he saw the performance of the ceremony of adoption. The witness examined in support of the factum of adoption is D. W. 2. The age of this witness is given as 76 years. He is a resident of the village of Annampalli where the parties live. At the material time he lived in a house of Bhasakararao. He is a purohit of the family and well-versed in the Vedas. He stated that he officiated at the time of the adoption of Rajesararao which, according to him, was performed in the month of Vysyakah in the year Krodhi. He spoke to the fact of the father of the boy having given him in adoption and to Seshamma having received the boy, and he also stated that the ceremony of Dattahomam was duly performed. The testimony of this witness was unreservedly accepted by the loower court and we think, rightly.


Apart from the evidence of this witness, there is the fact that the adoption of Bhaskararao was acquiesced in and recognised for a number of years by Seshamma who made the adoption. There is also long course of recognition on the part of persons who would be expected to know the fact and who are best acquainted with the circumstances. All this gives rise to the inference that the conditions relating to the adoption were fulfilled. We are in agreement with the conclusion reached by the court below that the adoption was in fact made.
 (30) The fact that there was an adoption and that the requisite ceremonies were performed having been found in the affirmative, we will now address ourselves to the question as to the validity of the adoption. The ground on which the validity of the adoption has been sought to be attacked is that at the time of the adoption, Seshamma, the widow of Bhaskararao, was only about 10 or 11 years old, and, therefore, not capable of forming a proper judgement about the act of adoption with regard to her own interests and the estate. On the evidence adduced before him, the learned trail judge has come to the conclusion that Seshamma was at the time of the adoption about 14 years of age and was capable of forming a proper judgement about the act of adoption.


(31) We have no precise evidence as to the age of Seshamma at the time of the adoption. In Ex. A-2, an extract from the register of deaths, the date of Seshamma death is shown as the 2nd October, 1952, and her age then as 62 years. If this was her correct age in 1952, she should have been born in the year 1890, which means that she was aged about 14 years, at the time of the adoption, which was in May 1904. The plaintiff, however, relied upon certain documents, to which a reference may now be made. In Ex. A-7, dated 25th March, 1907, which is a registration extract of the conveyance executed by Rajeswararao and his adoptive mother, Seshamma, in favour of Chinna Subbarayudu and his undivided sons, both Rajeswararao and Sehsamma were described as minors, represented by their guardian Kantamma, mother of Bhaskararao. Ex. B-5, dated 2nd May, 1907, which is a deed of mortgage, contains a similar description .


In Ex. B-110, a deed of sale dated 25th April 1909, the vendors, Rajeswararao and his adoptive mother Seshamma, were both shown as minors represented by guardian, Kantamma, mother of Bhaskararao. This description of Rajeswararao and Seshamma, both as minors by their guardian Kantamma, is found in Ex. B-7, dated 1st November, 1911; Ex. B-22 dated 15th November, 1911; Ex.A-11 the release deed dated 17th November 1911; as also in the sale deed, Ex. A-12, of the same date. We may, however, note that a contrary description appears from Ex. B-138, which is a registered lease deed, dated 9th August 1910. This was executed by Seshamma as the guardian of her minor adopted son, Rajeswararao. If the recital in this document is to be accepted as correct, she was a major, that is, she must have completed the age of 18 years even in 1910; whereas the other documents, already referred to, show her as a minor even in 1911. In the plaint the age of Seshamma at about the time of the adoption was given as 10 years; and in the written statements, she was shown as being 15 to 16 years of age at the time of the adoption.


From the evidence of D. W. 2 it would appear that Bhaskara Rao was married in or about 189 when he was about 17 or 18 years old, and Seshamma was then said to be aged 11 or 12 years D. W. 2 deposed that Seshamma joined her husbad about 7 or 8 month after her marriage and that she was living with her husband till his death in 1903. In cross-examination D. W. 2 stated that Seshamma was present at the time of the execution of the will and that she was then aged 13 or 14 years. This statement of D. W. 2 would fix the age of Seshamma at best at about 15 years at the time of the adoption. D. W. 3 has stated that Bhaskara Rao married Seshamma when she was 12 or 13 years old and that she joined her husband six months after the marriage and lived with him till he died in November 1903. According to D. W. 3, Bhaskararao died 4 years after his marriage, which would mean that Seshamma must have been aged about 16 or 17 years at the time of the adoption. D. W. 3, when cross-examined, stated that at the time of the marriage, Bhaskararao was aged about 14 or 15 years and that he does not know if Seshamma had attained puberty by the date of the marriage. D. w. 5 has stated that when he was married in 1912, Seshamma was aged about 28 years. His evidence would fix her age at about 17 years in or about 1903. Seshamma must have been undoubtedly a minor as she was under the age of 18 on the date of the adoption, if minority is to be determined with reference to


age of 18 on the date of the adoption, if minority is to be determined with reference to the India Majority Act (IX of 1875).


(32) Section 2 of that Act, however, contained exceptions. The section enacts:
 "Nothing herein contained shall affect--(a) the capacity of any person to act in the following matters (Namely) .........marriage, dower, divorce and adoption".
 (33) In respect of adoption, therefore, the capacity of a person to act is not to be determined with reference to the age of majority fixed by the India Majority Act.
 (34) In a recent decision Aravamudha Iyengar v. Ramaswami Bhattar, a Division Bench of the Madras High Court, consisting of Satyanarayana Rao and Rajagopalan JJ. have held that where the adoption is made by a widow either under the authority of her husband or after obtining the assent of sapindas, the act can be done and the authority can be given only if the person had attained majority and that in such a case, the test of mere ceremonial competence as well as the test of leaving the decision as to the capacity of the person to be decided on the facts of each case, cannot be accepted.


(35) In the above decision, the facts were these: One Kuppa Bhattar had a son, Krishana Bhattar, and a daughter, Ponnammal. Krishan Bhattar was married to Rukmini Ammal. He was born on the 3rd December, 1887, but died on the 6th June 1901. On the date when he died, he executed what purports to be a will but what was in fact an authority to adopt. On the 22nd March, 1940, Rukmini Ammal adopted the 1st defendant purporting to act on the authority conferred on her by her husband under the said document. The trial judge found that the factum of adoption was established and that Krishna Bhattar executed that will with full knowledge of its contents and that it was genuine. He, however, declared the adoption was established and that Krishna Bhattar was a minor and was not competent to confer an authority to adopt on his widow. The question which arose for consideration by the High Court was whether the authority conferred by Krishna Bhattar, a boy below 14 years of age at the time, was valid. It was held that as the authority to adopt was given by a boy when he was below 14 years of age, it was invalid and that the adoption by his widow in pursuance of the authority was also invalid.


(36) From an analysis of the facts of the case, it is manifest that Krishna Bhattur was below 14 years of age when he gave the authority to adopt to his wife , Rukmmi Ammal. After the death of Krishna Bhattar, there was an attempt to settle the dispute between the then reversioner and Rukmini Ammal. The parties entered into an unregistered family settlement deed though subsequently the terms of that settlement were not carried into effect and the settlement did not become effective . Rukmini Ammal adopted the 1st defendant purporting to act under the authority conferred by her husband under the terms of the will executed by him on the date on which he died.
 It is, therefore, clear that on the date of the adoption Rukmini Ammal was a major. She was 40 years of age. The only question therefore, that arose for consideration in the case before the learned Judges of the Division Bench was whether the authority of Krishna Bhattar, a boy below 14 years of age, at the time was valid. This again was answered in the negative. But after a review of the Hindu Law comes to an end on the completion of the sixteenth year and that the rule would apply to males and females, to the act of adoption as well as to an authority empowering the widow to make an adoption, and that if the person is below the age of majority recognised and established by Hindu Law, the adoption will be invalid.


(37) The learned Advocate for the appellant has strongly relied upon this decision for the contention that the adoption made by Seshamma, who had not completed her 16th year of age on the date of the respondents has, however contended that the principle of the decision must be restricted to the case of a male giving an authority to his wife to make an adoption and cannot be extended to the case of a female making the adoption pursuant to the power given by her husband. Counsel for both sides have stated that they were not in a position to cite any particular text on the Smrithis or commentaries or other sources of Hindu Law imposing a disqualification on a female, less than 16 years of age, for making an adoption in pursuance of an express power given by her husband. The extension of the embargo to females, it is contended, can only be by way of analogy. In this connection reliance was placed upon the decision of House of Lords in Quinn v. Leatham, (1901) AC 495 at p. 506 where Lord Halsbury observed as follows:
 ".....there are two observations of a general character which I wish to make and one is to repeat which I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."


(38) After a careful consideration of the decision in we are unable to say that the contention of the learned counsel for the respondent is ill-founded especially as an earlier Bench decision of the Madras High Court in Abayammal Ammal v. Rajarathna Ayyar, AIR 1927 Mad 1095 (to which reference will be made later), which is directly in point, does not seem to have been brought to the notice of the learned Judges.
 (39) The learned trial judge had held that Bhaskararao directed his wife to adopt her sister's son and that, therefore, the decision of the Calcutta High Court in Mondakini Dasi v. Adinath Dey, ILR 18 Cal 69 would be really in point. In that decision the person who gave the authority to adopt was a man of full age but the person who exercised that authority that is the widow, was a minor within the meaning of the Indian Majority Act. In fact, she was about eleven of twelve years old. In upholding the adoption, the learned Judges laid emphasis on the fact that the boy taken in adoption was definitely named in the authority given by the husband as the person to be adopted and that therefore the minority of the widow, who exercised the authority, could not affect the legality of the adoption. The learned Judges cited with approval the decision in Macnaghten's Precedents of Hindu Law, in which the Pandit's opinion was to the effect that the adoption by the widow, in pursuance of the express permission of her husband, was a perfectly valid adoption.


(40) Learned counsel for the respondents urged that the instant case falls within the scope of the principle laid down in ILR 18 Cal 69. But the lower court found on a review of the evidence of D. Ws. 2 and 3, that contemporaneously with the execution of the original of Ex. B. 1, Bhaskararao gave an oral direction to his wife to adopt her sister's son, Rajeswararao. We find, however, that the will itself does not contain any such direction. Apart from the admissibility or otherwise of the oral evidence, which seeks to add to the terms of the will, we find that if in fact, Bhaskararao gave such a direction, it would have been specifically mentioned in the will itself. On a consideration of the probabilities, it seems to us that no such direction was given by the husband in fact specified the boy to be adopted and it was therefore, held that there was nothing further to be done by the widow which required the exercise of her judgment but she had only to carry out her husband's wishes by making the adoption. This decision was noticed by the learned Judge who decided the Madras case in , and we find that they did not dissent from the view taken in the Calcutta case, for they observed that the Calcutta decision.
 "May perhaps be supported on the ground that, though the widow making the adoption was only eleven or twelve years old, no exercise of discretion on her part was required in the circumstances of the case."


(41) Now in a case decided by another Division Bench of the Madras High Court, consisting of Coutts-Trotter C. J., and Srinivasa Aiyangar J., in AIR 1927 Mad 1095, the validity of an adoption was attacked on the ground that at the time of the adoption the adoptive mother was only about 12 I/2 years old and, therefore not capable of forming a proper judgment about the act of adoption with regard to her own interests and the estate. As in this case, there also the adoption was made (questioned?) after a long lapse of time. It was found that the adoptive mother, though about 12 1/2 years old at the time of the adoption, was a person fairly well educated even at that time and capable of forming an opinion with regard to the intended act, and that the adoption had been practically acquiesced in and treated as valid from that time and everybody concerned had agreed in treating the adoption as valid. It was also found that there was no evidence let in on behalf of the appellants to show that the girl when making the adoption was not qualified to do the act.


The learned Judges held that having regard to the circumstance that the adoption came to be questioned after so many years it was impossible to expect anything more than the kind of evidence that had been let in on behalf of the plaintiff. It was further observed that girls of 12, at least many of them, were precocious and having regard to the evidence adduced, it was impossible to say that it had not been satisfactorily established that the girl was incapable of taking the boy in adoption, and that as regards the boy himself that was taken in adoption he was her younger brother and the evidence was that he was chosen by th girl herself. On these facts the learned facts. the learned Judges held that the adoption, he was valid. This decision was not brought to the notice of the learned Judges held that the adoption, was valid. This decision was not brought to the notice of the learned Judges who decided the case in .


(42) As has been already stated, in the present case, there is no precise evidence as to the age of Seshamma at the date of the adoption. Some of the documents show her as a minor in 1911. A registered lease deed executed in favour of the adopted son on 1910 however shows her as having been a major even in that year. Evidence has been adduced that she was married in 1898 when she was 11 or 12 years old. There is also evidence that she was leading a conjugal life. If she was leading a married life, it is impossible to conclude that she was only 11 or 12 years old. For a long ,number of years Rajeswararao was recongnised by every member of the family as the adopted son of Bhaskararao. He was registered as Karnam . It is admitted by the plaintiff himself that Rajeswararao was the karnam till his death. We find that under Ex. B. 12, dated 19th November 1937, the plaintiff's mother, Kamamma herself obtained a sale deed from Rajeswararao wherein he was described as the adopted son of Bhaskararao.


(43) In Rajendro Narth v. Jogendro Nath, 14 Moo Ind App 67 (PC), the Judicial Committee has to deal with the validity of a will under which an adoption was made and acquiesced in by the family for twenty seven years, when a suit was brought by one of the testator's heirs claiming the estate on the ground that the adoption was invalid. Their Lordships held that, although the defendant was bound to prove his title as adopted son, every allowance for the absence of evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time and afterwards impeached by a party who had the right to question the legitimacy, where the defendant, in order to defend his status is allowed to invoke against the claimant every presumntion which arises form long recognition of his family, and that the case of a Hindu, long recognised as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family.


(44) In another case, Venkata Seetharama Chandra Row v. Kachumarthi Raju, AIR 1925 PC 201, the authority of a widow to make an adoption, which was in fact made 42 years before suit, was questioned by a reversionary heir, and their Lordships, after referring to a variety of considerations, -- the transfer of the adopted son from his natural home to his adopted home; his recognition after inquiry, by the legal authorities; proceedings in which the plaintiff himself had acknowledged the adopted boy's right; the dilatoriness of the plaintiff in preferring his claim-- expressed of the view that the burden resting upon any litigant who disputed such a claim was indeed of the heaviest order.
 (45) In the present case, in numerous transaction and over a long period of time, Rajeswararao was treated as an adopted son, and having regard to the long lapse of time between the adoption and its being questioned, a strong presumption must be made in favour of the validity of Rajeswararao's adoption. There is no positive proof adduced by the plaintiff with regard to the precise age of Seshamma when the adoption took place. He could have proved that fact beyond all doubt by the production of a certified copy of her date of birth, and the plaintiff made no attempt to do so. There is no explanation by the plaintiff for the long inaction on his part in questioning the status of Rajeswararao as the adopted son.


It is no doubt, true that the Hindu Law of Inheritance (Amendment) Act (II of 1929) altered the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate, and it was only pursuant to that Act, that the plaintiff's mother, a step-sister of the late Bhaskararao, became entitled to rank in the order of succession next after a father's father and before a father's brother. The plaintiff's mother died in 1945. For a period of about 15 years, therefore, the plaintiff's mother who could have questioned the status of Rajeswararao as the adopted son, did not do so. Even after his mother's death, the plaintiff did not choose to question the adoption for about eight years. The explanation offered by him is that he wanted to claim the properties by him is eight years. To explanation offered by him is that he wanted to claim the properties after the death of Seshamma, the widow of Bhaskararao, which event happened in 1952. Having regard to all the circumstances of the case, it is pretty evident that the long delay, not satisfactorily explained. In the plaintiff's preferring this claim itself raises a strong presumption in favour of the validity of the adoption.
 (46) For all the above reasons, this appeal must fail and is dismissed with costs.
 (47) Appeal dismissed.


Khan Bahadur C.B. Taraporwala And ... vs Kazim Ali Pasha And Ors. on 27 August, 1965

ORDER Krishna Rao, J.


1. This is a batch of 21 applications made under Order I Rule 10, Order XXII Rule 10 and Section 151, C. P. C. by the same two petitioners for adding them as parties in C. S. No. 14 of 1958 on the ground that they have purchased the right, title and interest in the suit properties from the particular defendant mentioned in each application. The defendants concerned as the vendors arc defendants Nos. 35, 50, 91, 21, 100, 10, 92, 13, 24, 12, 25, 9, 40, 132, 131, 26, 14, 29, 3, 2 and 4 respectively C. S. No. 14 of 1958 is a suit brought by Dildar-Un-Nissu Begum for partition of the maleruka properties left by Nawab Kurshid Jah who died in 1302 The defendants arc her co-heirs and their legal representatives and alienees pendente lite except defendant No 43, the Jagir Administrator and defendants Nos 53 and 55, the States of Andhra Pradesh and of Mysore respectively. Defendant No 38, who was one of the co-heirs, was transposed as plaintiff No. 2 on 4-10-1958. Most of the parties entered into a compromise on 16-8-1961 and the suit was contested only by defendants 2 to 4, 10, 39, 47, 94 and 98. A receiver for the suit properties was appointed by this Court on 24-8-1962 and a preliminary decree for partition was made on 28-6-1963. Under the preliminary decree, each of the sharers was given a specified share in the suit properties and a commissioner was appointed to effect the partition.


was given a specified share in the suit properties and a commissioner was appointed to effect the partition. The suit is pending for the passing of the final decree.


The petitioners have purchased the entire share of the particular defendant mentioned in each application under registered sale deeds on various dates between 27-4-1964 and 1-8-1984, The vendor concerned in each application or his legal representatives have filed counters admitting the sale and the execution of the sale deed in favour of the petitioners and (except defendant No. 24) also supporting the prayer for impleading the petitioners. Notices of the applications were given to all the other parties to the suit. Defendant No. 39 filed counters on 22-9-1964 and 8-12-1964 opposing the applications and defendant No 140, who had purchased some of the suit properties on 24-7-1958 from defendant No. 10, filed a counter opposing Application No. 157 of 1964. The remaining parties to the suit did not file counters But after the hearing of all the applications was closed on 18-6-1965 and the orders were reserved, defendant No. 24 filed Application No. 113 of 1965 on 16-7-1965 and defendant No. 26 filed Application No. 115 of 1965 on 3-8-66 impugning the sale deeds though they admitted having executed them and asking for the dismissal of Applications Nos. 182 of 1964 and 331 of 1964 respectively. Similarly, defendant No. 25 has filed Application No 134 of 1966 yesterday for the dismissal of Application No. 164 of 1964.


2. It may be mentioned at this stage that the same two petitioners filed ten other similar applications, bearing Nos. 148 of 1964 etc., in respect of their purchases of the shares of certain other defendants in the suit properties. The first petitioner holds a general power of attorney which was executed in his favour by H.E.H. The Nizam of Hyderabad on 17-11-1962 and the 2nd petitioner is a son-in-law of H.E.H. The Nizam In pursuance of an order made by this Court on 20-8-1964, the 1st petitioner filed a memorandum disclosing that he made the purchases from the various defendants, who were the vendors in Applications Nos 146 to 167 of 1964, for and on behalf of H.E.H. The Nizam. Thereafter the ten applications hearing Nos. 148 to 151, 153. 154, 159, 161, 165 and 166 of 1964 were allowed on 11-9-1964, with the result that the petitioners have already been impleaded as defendants Nos. 156 and 157 Defendant No 39, who did not file any counters to those applications, filed the aforesaid counters subsequently, formulating his objections to the present batch of applications.


3. The contentions of Sri K.A. Noori Azad, the learned advocate for defendant No. 39 are (1) As the 1st petitioner, who is one of the two joint vendees in all the sale deeds, made the purchases on behalf of H.E.H., The Nizam, the provisions of Section 87-B C.P.C. are attracted and deprive this Court of jurisdiction to implead him in the absence of the consent of the Central Government. (2) The applications arc not maintainable either under Order 1 Rule 10 or under Order XXII Rule 10. C.P.C. (3) The sale transactions arc not permissible under the Mohammadan Law and are champertous and void under Section 23 of the Contract Act. (4) The sale transactions violate the injunctions issued during the suit as welt as Clause 21 of the compromise. (5) As the suit properties are in the possession of a receiver appointed by this Court, the sale transactions amount to a contempt of this Court.
 4. The first contention raises the question whether the 1st petitioner is personally entitled to enforce the sales. All the sale deeds are in similar terms their material portion being at follows:
 This Deed of Sale made this day of 1964.
 For Rs.....


In favour of
  (1) Khan Bahadur            Hereinafter referred
Sri C.B. Taraporwala,        to as "Vendees"
constituted Attorney &       which term shall
Financial Adviser to         include their heirs,
H. E. H. The Nizam           assigns and legal ra-
of Hyderabad.              presentatives.
          and
 (2) Nawab Kazim
 Nawaz Judge Bahadur,
 s/o the late Nawab
 Sajid Yar Jung Bahadur.

 Both are residents of Hyderabad.

 By   Hereinatfer    referred
1.  to as the vendor Ven-
S/o   dors which term shall
2.  include his, her or their
S/o             heirs, assigns and legal
  representatives.
 * * * * *

 (11) And Whereas, must of the major and minor sharers of this estate had approached the Vendees and requested them to purchase the schedule properties and all other properties belonging to the estate of Nawab Khurshid Jah Paigah, and to relieve them of this wasteful litigation etc., so that a serious and grave hardship which they are subjected to, in their daily life, may be relieved:
 (12) And Whereas, the Vendees after some deliberation, agreed to purchase the schedule property, in moieties and parts, for a reasonable and appropriate market value;
* * * * *


16. And Whereas the Vendor/Vendors agreed to sell and the Vendees agree to purchase the undivided share of the Vendor/Vendors in Schedule prperty which is ..... share out of a total denomination of 38, 70, 720 shares, Now this deed of sale witnesseth as follows:
 (a) In consideration of..... the receipt of which is hereby acknowledged by the Vendor/Vendors, and the balance of Rs. is to be paid after the Vendees are brought on record in C.S 14/58, L.P.A and other proceedings or by post-dated cheque No. for Rs. on the above Bank, the Vendor /Vendors hereby transfer

 (c) The Vendees henceforth shall have the full and absolute power to take possession of the schedule properties sold hereby either through Court by impleading themselves as parties in C.S. No. 14/58 or by any other convenient and legal arrangement with the authorities, Receiver or Commissioner in C. S.

14/58 or by any such legal and proper methods as would suit them best. The physical posses sion held by the sharers in some of the Sche dule properties will be delivered by them with in three months from this date. In other cases of possession through tenants, the Vendees are entitled to take possession immediately.
* * * * *


(g) The vendees shall henceforth implead themseleves as parties in place of the vendor/ vendors in C. S. 14/58 and L. P. A. and take out all necessary steps in the litigation as would suit the vendees best. The vendees shall be entitled to effect mutations in all departments and to enjoy all the properties conveyed here by with full and absolute rights.
 In witness whereof, the vendor/vendors has/ have signed this deed of sale on the date aforementioned in the presence of.
Witnesses : Vendors :
1. 1.

2. 2.
 In all the applications the aforesaid vendees figure as the petitioners. As it is conceded that the 1st petitioner made all the purchases for and on behalf of H. E. H. the Nizam, who is the ex-Ruler of the State of Hyderabad, Sri K.A. Noori Azad argues that the real 1st petitioner is H. E. H., the Nizam and that the consent of the Central Government is necessary under Section 87-B read with Section 86 (1), C. p. C.
 5. The answer to the point turns on Section 230 of the Contract Act which reads :
 "In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.
 Such a contract shall be presumed to exist in the following cases :
* * * * *

 (3)    Where  the  principal,  though  disclosed, cannot be sued."


If there is a contract to that effect an agent may personally enforce the contract entered into by him on behalf of his principal. Here, there is no mention of H. E. H. The Nizam at all throughout the sale-deeds except in the description of the 1st vendee. Khan Bahadur Sri C. B. Taraporwala. On the other hand, there is a specific provision in Clause 16 (g) that the vendees will implead themselves in C. S. No. 14/58 and this is exactly the object of the applications All the vendors except defendant No 24 have unequivocally stated in their counters that they have no objection to the petitioners being impleaded. Only defendant No. 24, who is the vendor concerned in Application No. 162 of 1964, has confined himself in his counter to admitting the sale and has stated nothing about the petitioners being impleaded The form in which these sale-deeds have been drawn up shows that the petitioners were personally treated as the vendees to whom the legal title passed. In Clause 16 (g) there is a contract to the effect that the two petitioners as such may enforce the sales. The intention of the parties will be ascertained not only from the form of the contract but also from the surrounding circumstances. If the intention here was to transfer the legal title to H. E. H. the Nizam, the vendors would have had to seek the consent of the Central Government in order to sue him for any relief such as for the balance of the consideration. They would have naturally preferred to transfer the legal title to the 1st petitioner. Sri C.B. Taraporwala, rather than to H. E. H., the Nizam. In my opinion, there was clearly a contract entitling the 1st petitioner to enforce the sales.


6. In H. O. Brandt & Co. v. H.N. Morris and Co.; (1917) 2 K B 784, a suit for damages for non-delivery was brought by H. O. Brandt & Co. The bought note addressed to the defendants was headed as "From Messrs. H. O. Brandt & Co., 63, Granby Row, Manchester. For and on behalf of Messrs. Sayles Bleacheries, Saylesville, Rhode Island, U. S. A." The majority of the Bench consisting of Viscount Reading, C. J. and Scrutton, I,. 3., held that H. O. Brandt & Co. were the contracting parties and were entitled to sue upon the contract. The mention of Messrs Sayles Bleacheries was held to be intended for making known the destination of the goods.
 7. In Agacio v. Forbes, (1861) 14 Moore, P.C. 160, the agreement to pay money was inform with the plaintiff, Agacio, although it was for the benefit of his firm to whom the debt was due and the firm also might have been entitled In sue upon it. The Judicial Committee reversed the decision of the Supreme Court of Hong Kong and held that Agacio was competent to sue upon the agreement in his own name.


8. The fact that Sri C.B. Taraporwala was the Attorney and Financial Adviser to H. E. H. the Nizam and described himself as such in the sale deed would not militate against the parlies having intended the legal title to be transferred to him As he states that he made the purchases for and on behalf of H. E. H., the Nizam, the latter would be the beneficial owner although the legal title vests in the former. It is settled in GUR Narayan v Sheolal Singh, AIR 1918 PC 140 that a benamindar can sue in his own name without making the beneficial owner a party. This authority was followed in Narendra Nath v. Midnapore Zamindary Co. Calcutta AIR 1940 Cal 115 and Raj Narain v Ahmadi Jan, AIR 1941 All 81 Hence there can be no objection to the 1st petitioner seeking to be impleaded in his own name although he made the purchases on behalf of H. E. H. the Nizam.
 9. Sri A. Bhujanga Rao, the learned Counsel for defendant No. 16, has raised a point that the power of attorney dated 17-11-1962 in favour of the 1st petitioner does not specifically authorise him to obtain sale-deeds and sue in his own name. A perusal of the power of attorney shows that it empowers the 1st petitioner to transact almost all financial affairs on behalf of H. E. H. the Nizam. Clause 14 authorises the 1st petitioner.
 " To purchase or take on lease or otherwise any lands, houses, tenements or chattels as he ray said Attorney may think desirable for my purpose and to do and execute all acts, deeds, and things for effecting and completing such purchases. "


Clause 5 authorises the 1st petitioner " to commence any action or proceeding in any Court of Justice .... for the recovery of any . . . property." No doubt, as pointed out by Sri A. Bhimjanga Rao, a power of attorney is construed strictly -- Mulla's Contract Act, Eighth Edition (1957), at page 628. The rules for the construction of powers of attorney are stated In Bowstead's Law of Agency, Eleventh Edition (1951). at page 49 thus :
 (1) The operative part of the deed is controlled by the recitals where there is ambiguity.
 (2) Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts.
 (3) General words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers only when necessary for that purpose.
 (4) The deed must be construed so as to include all incidental powers necessary for its effective execution.
 There is nothing in the power of attorney here, which may be construed as preventing the 1st petitioner from obtaining sale-deeds and commencing proceedings in his own name, though on behalf of H E H the Nizam. On the other hand, this power may be inferred as an incidental power necessary for the executiou of the large variety of transactions authorised by the instrument. It follows that no inference can be drawn from the power of attorney that the 1st petitioner would not have intended to obtain the legal title in himself.


10. Although Ibis is sufficient to negative the first contention aforesaid of Sri K.A. Noori Azad, I shall also deal with the contention of the assumption that H. E. H. the Nizam is in reality, though not in form, the 1st petitioner, because elaborate arguments were advanced on that footing. The position taken by Sri V. K. Vaidya is : (1) Sub-section (1) of Section 86. C. P. C., does not apply because this is not a case where H. E. H. the Nizam is being sued (2) Even if Sub-section (1) of Section 86 C. P. C., applies, the privilege accorded thereunder is waived by H. E. H. the Nizam and any further statement to that effect will, if necessarv be filed.
 11. It appears to me that the latter point may be briefly disposed of, although a large number of decisions were cited by both sides. Articles III and IV of H. E. H. the Nizam's Agreement of Accession dated 25.1.1950, a copy of which in the printed while paper (Appendix VII at page 884) was produced by Sri V.K. Vaidya in response to Application No. 382 of 1964 read thus :
ARTICLE III.
 " His Exalted Highness the Nizam of Hyderabad and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State Immediately before the fifteenth day of August 1947."
ARTICLE IV.


ARTICLE IV.
 The Government of India guarantees the sucession according to law and custom to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Exalted Highness the Nizam of Hyderabad.
 The relevant personal privilege as it existed before 16-8-1947 depends on Section 86, C. P. C. prior to its amendment by Act II of 1951. The earlier conflict of views on the question whether the privilege could be waived was set at rest by the decision of the Judicial Committee of the Privy Council in Gaekwar Baroda State Ry. v. Hafiz Habib-Ul-Haq. AIR 1938 PC 165. Sir Lancelot Sanderson held that the provisions of Section 80, C. P. C., are statutory and imperative, and having regard to the public purposes which they served, they cannot be waived.


12. The subsequent amendment by Act II of 1951 has introduced Clause (d) in Section 86 (2), which proceeds on the footing that the privilege can be expressly or impliedly waived. But the intention of Articles III and IV of the Agreement of Accession was to preserve the personal privileges as they existed before 158 1947. It was settled by AIR 1938 PC 165 that the privilege could not be waived No doubt, Section 87-B, C. P. C., which was added by Act II of 1951, is "intended substantially to save the Rulers of former Indian States from harassment : Tokendra Bir Singh v. Govt. of India, AIR 1904 SC 1663 (1666). But that would be a matter for the consideration of only the Control Government, when its sanction under Section 86 (1) is requested : Narottam Kishore v. Union of India, . It is also true that under the English Law, such a privilege is capable of being waived expressly or by submission to Court's jurisdiction. But there would be no justification for engrafting that principle upon the Indian statute, if the language of statutory provision is capable of only one construction: Indrajit-singhji v. Rajendrasinghji, AIR 1956 Bom 45 (47) and Usmanali Khan v. Sagarmal, AIR 1962 Madh Pra 320 (327). For the reasons already staled. I am of opinion that the privilege conferred by Sub-section (1) of Section 86. C. P. C. cannot be waived.


13. There is however more force in Sri V. K. Vaidya's submission that even if H. E. H. the Nizam is held to be the real party, he is not being sued within the meaning of Sub-section (1) of Section 86. C. P. C. As observed; in Loke Nath v. Radha Gohinda, AIR 1926 Cal 184. " in a suit for partition, the position of the parties is not that of the plaintiffs and defendants as in other suits; for in a partition suit, or in a suit for administration, or in a suit of a similar nature, every party stands in a position of a plaintiff with reference to another and that of the defendant with reference to some other". In the present case, all the vendors have obtained shares in the suit properties under the preliminary decree and these shares have been conveyed under the sale-deeds. The intention of the applications and the effect of allowing them will only be to enforce rights to property acquired under the sale-deeds. It is not any right to relief against the person or file property of H. E. H. the Nizam that would be litigaled, in which event alone, it could be said that the Ruler being sued within the meaning of Sub-section (1) of Section 86, C. P. C. Although arrayed as defendants 156 and 157, the petitioners could equally be regarded as plaintiffs, just like defendant No. 38. after transposition. As it cannot be said that the purchasers under the sale-deeds are being sued, the provisions of Sub-section (1) of Section 86. C. P. C., do not apply to the situation.


14. It is difficult to appreciate the contention that the applications are not maintainable even under Order 1, Rule 10 (2), C. P. In Razia Begum v. Sahebzadi Anwar Begum AIR 1958 SC 886, the plainfiff filed the suit for a declaration that she is the legally wedded wife of the defendant. It was held that another wife of the defendant and their son would be bound by the declaration by virtue of Section 43 of the Specific Relief Act and that they were therefore rightly joined as additional defendants on their application under Order 1, Rule 10, C. P. C., though it was opposed by the plaintiff. R. P. Sinha, J. (as he then was) applied the principle lhat persons who would be bound by the judgment to be given in the action may be properly impleaded. The same view was taken by Umamaheswaram, J in Narasimha Raju v. Yellamanda, AIR 1960 Andh Pra 32, when he referred with approval the observation of Oldfield, J. in Rajaratnam Iyer v. Kalasyasundaram Iyer, AIR 1923 Mad 521 that "it would be strange if a person who would be represented by a parly on the record and bound bv the decision against that party is to be debarred from himself appearing to protect his interests." In the present case, it is nol disputed that, under the doctrine of lis pendens the petitioners as alienees pendente lite would be bound bv the final decree to be passed in the suit. It follows that there can be no possible doubt as to the maintainability of the application under Order 1. Rule 10. C. P. C.


15. The next aspect of the controversy for consideration is whether Order XXII, Rule 10 C. P. C., also applies. The relevant portion of the Rule is in the following terms :
 "(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved."


It was observed by Lord Phillimore in Manindra Chandra v. Ram Kumar AIR 1922 PC 304, (306) (Col 2) that Order XXII contemplates only cases of devolution of interest from some original parly to the suit, whether plaintiff or defendant, upon someone else. The provision in Rule 10 is an enabling one -- Somulu v. Appalanaidu, AIR 1958 Andh Pra 507 The object of the rule is to enable the continuation of the suit where the interests of a party on record devolves on some other person. As observed by Lord Porter in Monghibai v. Cooverji Umersey. AIR 1939 PC 170 (173). "parties who have assigned the whole of their interest pendciite lite cannot ask for judgment in respect of an interest which is no longer theirs"'. The expression "by leave of the Court"1 vests the Court with a discretion in the mailer which is to be judicially exercised. The mere fuel that an assignment is disputed is no ground for refusing leave -- Wright Neville v. Freser, AIR 1944 Nag 137 and Nanjammal v. Eswaramurthi, AIR 1954 Mad 592 (594). In the present case, it is not disputed that the sale transaction in favour of the applicants came into existence during the pendency of the suil. All the sale transactions are udmitted bv the respective vendors The applicants have also filed all the sale-deeds except in Application No. 167 of 1964 where it was stated by Shri V.K. Vaidya that the sale-deed has not been returned by the registering officer The entire right, title and interest of the vendor to a share in the suit properties has been conveyed under each sale-deed. It has to be borne in mind that the vendors, who are no longer interested in the properties to be allotted to


be borne in mind that the vendors, who are no longer interested in the properties to be allotted to their shares, may not object to any disadvantageous or prejudicial allotment of properties to their share.


Sri K.A. Noori Azad has urged that defendant No. 39 disputes the right of defendants 1, 40 and 50 to any share, that the vendors would be liable for damages caused by them to the suil properlies in their possession which is expressly provided for in the case of some of the defendants in Clause 28 of the preliminary decree and that defendant No. 39 may also become entitled to costs against the vendors in the appeal preferred by him. But defendant No. 39 would not be prejudiced in this respect if the vendors are retained as defendants and the applicants arc merely added as parties. It is not necessary lhat in all cases, a party impleaded under Order XXII, Rule 10 C. P. C., should be substituted for the original parly There are precedents for both the transferor and the transfereee being parties on record -- Commercial Rank of India Ltd. v. Sarju Saheb J. ILR 24 Mad 252. Veeraraghava Reddi v. Subba Reddi, ILR 43 Mad 37: (AIR 1920 Mad 391) (SB) and Shantil Lal v. Mukat Lal, 1944 42 All LJ 351: ILR 1944 All 350. In Shanmugam v. Radhakrishna Sarma , it was held by a Division Bench of the Madras High Court that Order XXII, Rule 10. C. P. C., applies to cases of devolution of inleresl by assignment. The observation in Kaliaperumal v Ramchandra. AIR 1927 Mad 693 of Ramesam, J. sitting singly that "order 22 of the Civil Procedure Code deals with devolution of interest by the operation of law and not by act of parties '' cannot therefore., be regarded as good law. It follows that the applications are


by act of parties '' cannot therefore., be regarded as good law. It follows that the applications are also maintainable under Order XXII, Rule 10, C.P.C The applicants, who have been already impleaded as defendants Nos. 156 and 157 would be entitled under Order XXII, Rule 10 C. P. C., to represent the interest of the vendors concerned in the present applications.


16. The next contention that arises for consideration is whether the sale transactions are opposed to the Mohammadan Law or are champertous and void under Section 23 of the Contract Act. Under the Mohammadan Law, the heirs succeed to the estate as tenants in common in specific shares and any heir may even before the distribution of the estate transfer his own share. (Mulla's Mohammadan Law.


Fourteenth Edition (1955), Sections 41-42 at pages 32 and 33) Khatoon Bihi v. Abdul Wahab, AIR 1939 Mad 306. There is also nothing in the Mohammadan Law against the transferee's right to possession under Section 44 of the Transfer of Property Act. Transfers by one co-heir of a deceased Mohammadan have been enforced or recognised in numerous reported cases, as for instance Chandra Shekhar v. Abidalli, (AIR 1925 Nag 68), Md. Afzal Khan v.