6. Under Section 7 of the Industrial Disputes Act, 1947, a Labour Court can be constituted by the appropriate Government by a notification in the Official Gazette, for the adjudication of industrial disputes relating to any matter specified in the Second Schedule to the Act and for performing such other functions as may be assigned to it under the Act. The Labour Court shall consist of one person only. Unless a person is or has been a Judge of a High Court; or has for a period of not less than three years, been a District Judge or an Additional District Judge; or he has held any judicial office in India for not less than seven years; or has been the Presiding Officer of a Labour Court constituted under any Provincial Act for not less than five years, he is not qualified for appointment as a Presiding Officer of a Labour Court. Section 11, which deals with the procedures, powers and duties of the authorities under the Industrial Disputes Act including the Labour Courts, and Section 11-B which relates to the execution of an award made by a Labour court, which have a bearing are extracted:
 "11. Procedure and powers of Conciliation Officers, Boards, Courts and Tribunals:- (1) Subject to any rules that may be made in this behalf, an Arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the Arbitrator or other authority concerned may think fit.
 (2) A Conciliation Officer or a member of a Board, or Court or the Presiding Officer of a : Labour Court, Tribunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.


Nalgonda Co-Op. Marketing ... vs Labour Court And Ors. on 18 March, 1993

(3) Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters namely:-
 (a) enforcing the attendance of any person and examining him on oath;
 (b) compelling the production of documents and material objects;
 (c) issuing commissions for the examination of witnesses;
 (d) in respect of such other matters as may be prescribed; and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860).


................
 (5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in the proceeding before it.
 (6) All conciliation officers, members of a Board or Court and Presiding Officer of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code 1860 (45 of 1860).
 (7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid and to give all necessary directions for the purpose aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue.
 (8) Every LabourCourt, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of Sections 345, 346 ad 348 of the Code of Criminal Procedure, 1973 (2 of 1973)".
"11-B. Power of Labour Court or Tribunal to execute its award by decree:- A Labour Court or a Tribunal shall have the power of Civil Court to execute its award or any settlement as a decree of a Civil Court".
 7. Two rules, which are relevant for the purpose of this case, are Rules 12 and 26 of the Andhra Pradesh Industrial Disputes Rules, 1958 and they are as under:


"12. Proceedings before the Labour Court or Tribunal: Where the State Government refers any industrial dispute for adjudication to a Labour Court or Industrial Tribunal, within two weeks of the date of receipt of order of reference, the party representing workmen and the employer involved in the dispute shall file with the Labour Court or Industrial Tribunal, as the case may be, a statement of the demands relating to the issues only as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute:
 Provided that where the Labour Court or Industrial Tribunal, as the case may be, considers it necessary, it may:
 (a) extend the time limit for filing of such statement; or


(b) reduce the time limit for filing of such statement to one week in emergent cases for reasons to be recorded in writing; or

 (c) where both the parties agree, reduce the time limit for filing of such statement as per such agreement; or

 (d) where both the parties agree, dispense with the requirement of filing of such statement altogether;
 (e) allow at any stage of the proceedings amendments to such statement to the extent as may be necessary for the purpose of determining the real issues included in the order of reference.
 (2) Within two weeks of the receipt of the statement referred to in Sub-rule (1), the opposite party shall file its rejoinder with the Labour Court or Tribunal, as the case may be, and simultaneously forward a copy thereof to the other party :
 Provided that such rejoinder shall relate only to such of the issues as are included in the order for reference:
 Provided further that where the Labour Court or Industrial Tribunal, as the case may be, considers it necessary, may-
 (a) extend the time limit for filing of such rejoinder; or

 (b) reduce the time limit for filing of such rejoinder to one week in emergent cases for reasons to be recorded in writing; or

 (c) where both the parties agree, reduce the time limit for filing of such rejoinder as per such agreement; or


(d) where both the parties agree, dispense with the requirement of filing of such rejoinder altogether;
 (e) allow at any stage of the proceedings amendments to such rejoinder to the extent as may be necessary for the purpose of determining the real issues included in the order of reference.
 (3) The Labour Court or Tribunal, as the case may be, shall ordinarily fix the date for the first hearing of the dispute within six weeks of the date on which it was referred for adjudication:
 Provided that the Labour Court or Tribunal, as the case may be, may, for reasons to be recorded in writing, fix a later date for the first hearing of the dispute.


(4) The hearing shall ordinarily be continued from day to day and arguments shall follow immediately after the closing of evidence.
 (5) The Labour Court or Tribunal, as the case may be, shall not ordinarily grant an adjournment for a period exceeding a week at a time, not more than three adjournments in all at the instance of any one of the parties to the dispute:
 Provided that the Labour Courts or Tribunal, as the case may be, may, for reasons to be recorded in writing, grant an adjournment exceeding a week ormore than three adjournments at the instance of any one of the parties to the dispute.
 (6) The Labour Court or Tribunal, as the case may be, shall, as the examination of each witness proceeds, make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the presiding officer :
Provided that the Labour Court or Tribunal, as the case may be, may follow the procedure laid down in Rule 5 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908) if he considers necessary so to da, in view of the nature of the particular industrial dispute pending before it".
 "26. Power of Boards, Courts, Labour Courts and Tribunals: In addition to the powers conferred by the Act, Boards, Courts, Labour Courts or Tribunals shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act V of 1908), when trying a suit, in respect of the following matters, namely:-
 (a) discovery and inspection;
 (b) granting adjournment;
 (c) reception of evidence taken of affidavit;


(c) reception of evidence taken of affidavit;
 and the Board, Court, Labour Court or Tribunal may summon and examine any person whose evidence appears to it to be material and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898 (Central Act V of 1898)".
 8. Another Act, the provisions of which fall the consideration in this case, is the Limitation Act No. 36 of 1963. The short preamble to the Limitation Act reads thus:
 "An Act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith".


Subject to the provisions contained in Sections 4 to 24 every suit instituted, appeal preferred and application made after the prescribed period, shall be dismissed although limitation has not been set up as a defence (Section 3). Under Section 5, the Court has power to admit an appeal or an application other than application filed under the provisions of Order XXI of the Code of Civil Procedure, if it is satisfied that there is sufficient cause for not preferring the appeal or making the application within the period of limitation. Sub-section (2) of Section 29 provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period is the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. Article 137 in the Schedule to the Limitation Act, which attracts attention in this case prescribes the period of limitation of three years for any other application for which no period of limitation is provided elsewhere in the 3rd Division of the Schedule and the period of limitation begins to run from the time when the right to apply accrues. This is a residuary article in the 3rd Division relating to applications. The Article is herein extracted:
  137. Any other application      Three      When the
     for which no period        years      right to
     of limitation is                    apply
     provided elsewhere                    accrues.
     in this division.


The corresponding Article 181 in the repealed Indian Limitation Act, 1908 provided that for the applications for which no period of limitation was provided elsewhere in the Schedule or by Section 48 of the Code of Civil Procedure, 1908, the period of limitation was three years from the time when the right to apply accrued.
  181. Applications for            Three      When the
     which no period of          years      right to
     limitation is provided                 apply accrues.
     elsewhere in this
     Schedule or by Section
     48 of the Code
     of Civil Procedure,
     1908.


9. The scope and ambit of Article 181 in the First Schedule to the Indian Limitation Act, No. IX of 1908 and its applicability to the application made by the Official Liquidator under Section 38 of the Indian Companies Act for rectification of the Register of a Limited Company fell for consideration in Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd., Salem, , before a Bench of four learned Judges of the Supreme Court. They referred to the following passage in the judgment of the Judicial Committee in Hansraj Gupta v. Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company, 60 Indian Appeals, p. 13 at p. 20:
 "It is common ground that the only Article in that Schedule which could apply to such an application is Article 181; but a series of authorities commencing with Bal Manekbai v. Manekji Kavasji, 1 Bom. 213, has taken the view that Article 181 only relates to applications under the Code of Civil Procedure, in which case no period of limitation has been prescribed for the application....."
 The learned Judges observed:


The learned Judges observed:
 "This long catena of decisions may well be said to have, as it were added the words "under the Code" in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available".
 10. We may add that the amended Articles 158 and 178 pertain to the applications filed under the Arbitration Act.
 11. We will now refer to the relevant decisions of the Supreme Court wherein the question relating to the applicability of the provisions of the Limitation Act to the proceedings arising under the Industrial Disputes Act has been considered. Before we do so, let us look into the provisions of Section 33-C(2) of the Industrial Disputes Act, 1947:
 33-C(2) "Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government". (as it stood prior to its amendment).


The Payment of Wages Act, 1936 prescribes period of limitation for recovery of wages. Section 33-C(2) of the Industrial Disputes Act, 1947 does not prescribe any period of limitation for recovery of any money by an employee from his employer. In such circumstances, the following question came up for consideration before a Bench of three learned Judges of the Supreme Court in Bombay Gas Co. Ltd v. Gopal Bhiva and Ors. (1963-II-LLJ-608): "whether the fact that for recovery of wages, limitation has been prescribed by the Payment of Wages Act, justify the introduction of considerations of limitation in regard to proceedings taken under Section 33-C(2) of the Industrial Disputes Act". The question was answered in the following words (pp. 613-614):
 "The words of S.33-C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provisions without any considerations of limitation. No doubt, such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provisions, however, the Labour Court cannot import any such consideration in dealing with the applications made under Section 33-C(2)".
 As to the applicability of Article 181 of the Limitation Act, 1908 to the proceedings under the Industrial Disputes Act, 1947, the learned Judges observed:(p. 614):
 "It is well settled that Article 181 Limitation Act applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under Section 33-C(2) of the Act would not be justified".


12. After the Indian Limitation Act, 1908 was repealed by the Limitation Act, 1963, an identical point was raised before a Bench of two learned Judges of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli: (1969-II-LLJ 651). The learned Judges referred to the earlier decisions of the Supreme Court and held that Article 137 in the Schedule to the Limitation Act, 1963 was not applicable to applications under Section 33-C(2) of the Industrial Disputes Act, 1947. The relevant passage is extracted. (pp. 660- 661):


"It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when considering the scope and applicability of Article 137 in the new Limitation Act of 1963. The language of Article 137 is only slightly different from that of the earlier Article 181 inasmuch as, when prescribing the three years' period of limitation, the first column giving the description of the application reads as "any other application for which no period of limitation is provided elsewhere in this division". In fact, the addition of the word "other" between the words "any" and "application" would indicate that the legislature wanted to make it clear that the principle of interpretation of Article 181 on the basis of ejusdem generis should be applied when interpreting the new Article 137. This word "other" implies a reference to earlier Articles, and, consequently, in interpreting this Article, regard must be had to the provisions contained in all the earlier Articles. The other Articles in the third division to the Schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases of applications under the Code of Criminal Procedure. The effect of introduction in the third division of the Schedule of reference to applications under the Arbitration Act in the Old Limitation Act has already been considered by this Court in the case of Sha Mulchand & Co. Ltd. . We think that, on the same principle, it must be held that even the further alteration made in the Articles contained in the third division of the Schedule to the New Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary Article 137 which deals with other applications. It is not possible to hold that the intention of the legislature was to drastically alter the scope of this Article so as to include within it all applications irrespective of the fact whether they had any reference to


this Article so as to include within it all applications irrespective of the fact whether they had any reference to the Code of Civil Procedure.


This point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the Articles in the third division to the Schedule, including Article 181 of the Limitation Act of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a Court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of Articles 158 and 178 were to be presented to Courts whose proceedings were governed by the Code of Civil Procedure. At best the further amendment now made enlarges the scope of the third division of the Schedule so as also to include some applications presented to Courts governed by the Code of Criminal Procedure. One factor atleast remains constant and that is that the applications must be to Courts to be governed by the Articles in this division. The scope of the various Articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than Courts, such as a quasi- judicial Tribunal or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not Courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure. We cannot, therefore, accept the submission made that this Article will apply even to applications made to an Industrial Tribunal or a Labour Court. The alterations made in the Article and in the New Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than Courts, are now to be governed for purposes of limitation by Article 137"


In this decision, the distinction between Article 181 in the repealed Act and Article 137 in the present Limitation Act has been explained by the Supreme Court. Whereas Article 181 of Limitation Act 1908 applied to the applications made under the Code of Civil Procedure, Article 137 of the Limitation Act, 1963 only enlarged the scope of the third division of the Schedule to the Act so as also to include some applications presented to a Court governed by the Code of Criminal Procedure. In this Judgment, it has been categorically laid down that the Articles in the third division of the Schedule to the Limitation Act, 1963 are applicable only to the applications made to the Courts and they are not applicable to the applications made to bodies other than Courts, such as Quasi-Judicial Tribunals. Industrial Tribunals and Labour Courts dealing with the applications or references arising under the Industrial Disputes Act are not Courts and they are not governed by the provisions of either the Code of Civil Procedure or the Code of Criminal Procedure, except to the limited extent specified in Section 11 of the Industrial Disputes Act and Rule 26 of the Rules made thereunder.


13. A Bench of three learned Judges of the Supreme Court in Nityanand M. Joshi and Anr. v. the Life Insurance Corporation of India and Ors.: (1969-II-LLJ-711) reiterated the view expressed above, in the following terms:(p.712) "In our view, Article 137 only contemplates applications to Courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various Articles are applications filed in a Court. Further, Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is "when the Court is closed". Again under Section 5 it is only a Court which is enabled to admit an application after the prescribed period has expired if the Court is satisfied that the applicant had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963".


However, differing from the view expressed in Athani Municipality case (supra) "that in spite of the changes made in the Indian Limitation Act, 1963, no drastic change was intended in the scope of Article 137 so as to include within it all applications irrespective of the fact whether they had any reference to the Code of Civil Procedure or not" the learned Judges observed as follows: (pp.712-713) "It is not necessary to express our views.... It seems to us that it may require serious consideration whether applications to Courts under other provisions, apart from Civil Procedure Code, are included within Article 137 of the Limitation Act, 1963 or not. But the view of the learned Judges is clear and categorical that the Indian Limitation Act, 1963 only deals with the applications to court and that the Labour Court is not a court within the meaning of the Indian Limitation Act".
 14. The point which was left open in the above decision was decided by a Bench of three learned Judges of the Supreme Court in the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, . It was held that Article 137 was applicable not only to the applications made under the Code of Civil Procedure, but also to the applications made under any other Act, to a Court. In other words, Article 137 was applicable to an application made to any Court whether it be an application made under the Civil Procedure Code or some other Act.


This is a case arising under the Telegraph Act, 1885. The provisions of the Act contemplate determination of compensation payable under Section 10 of the Act, by the District Judge. Having noticed that the provisions of the Act contain intrinsic evidence that the reference to the District Judge means reference to the District Court, the learned Judges have taken the view that the provisions of the Limitation Act are applicable to the applications made to the District Judge; the relevant portion of the judgment is as under:
 "The alteration of the division as well as the change in the collection of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act, there was no division between applications in specified cases and other application as in 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period".
 15. Rejecting the contention that Section 5 of the Limitation Act is applicable to the proceedings before the Collector under Kosi Area (Restoration of Lands to Raiyats) Act, 1951, a two-Judge Bench of the Supreme Court has held in Smt. Sushila Devi v. Ramanandan Prasad and Ors. :


"We do not see how Section 5 could be involved in connection with the application made on October 17, 1965 by the first respondent. Under Section 5 of the Limitation Act an appeal or application "may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period". The Collector to whom the application was made was not a Court, though Section 15 of the Act vested him with certain specified powers under the Code of Civil Procedure; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise. We therefore think that the High Court misdirected itself in referring to Section 5 of the Limitation Act".
 16. It is manifest from the dicta in the aforesaid decisions that a Labour Court is not a court within the meaning of the Indian Limitation Act. Another principle which has been clearly enunciated is that the Limitation Act is applicable only to the applications made to a court either under the Civil Procedure Code or any other Act. In view of those decisions, it is not at all necessary to consider any further whether the Labour Court is a court within the meaning of the Indian Limitation Act or not.


17. Even otherwise, we do not find any force in the contention of Mr. A.K. Jayaprakash Rao, the learned counsel for the appellant, that in view of the provisions of Sections 7, 11 and 11-B of the Industrial Disputes Act, 1947 read with Rules 12 and 26 of the Andhra Pradesh Industrial Disputes Rules, 1958, a Labour Court is a Court within the meaning of the Indian Limitation Act. Section 7 merely deals with the constitution of a Labour Court. Just because a District Judge happens to preside over a Labour Court, it does not automatically become a court. Under Section 11, only limited powers under the Civil Procedure Code regarding the enforcement of the attendance of a person, compelling the production of documents and issuing commissions for the examination of witnesses, are conferred on the Labour Court. It is deemed to be a Civil Court only for the limited purpose of Sections 345, 346 and 348 of the Code of Criminal Procedure. It is left to the Labour Court to follow such procedure as it may think fit. The power conferred on a Labour Court to execute its award as the decree of a Civil Court, does not have the effect of transforming it into a Civil Court.
 18. In Bharat Bank Ltd. Delhi v. The Employees of The Bharat Bank Ltd., Delhi, (1950-LLJ-921) Justice Mahajan, (as he then was), explained the characteristics of a Court as under (P-929):


"As pointed out in Halsbury's Laws of England, the word "court" originally meant the King's Palace but subsequently acquired the meaning of (1) a place where justice was administered, and (2) the person or persons who administer it. In the Indian Evidence Act, it is defined as including all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law......
 It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. In R v. London County Council, (1931) 2. K.B. 215: (100L. .K.K.B. 760) Saville L.J. gave the following meaning to the word Court or judicial authority":
 "It is not necessary that it should be a court in the sense that this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rightly after hearing evidence and opposition.


As pointed out in picturesque language by Lord Sankey L.C. in Shell Co. of Australia v. Federal Commissioner of Taxation, (1931) A.C. 275: (100 L.J.P.C. 55), there are Tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that such Tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions within the ambit of the word "Tribunal"....."
 The learned Judge explained the nature of the functions performed by an Industrial Tribuna1(p.932):
 "In my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of Justice..... That circumstance does not make them anything else but Tribunals exercising judicial power of the State, though in a degree different from the ordinary courts and to an extent which is also different from that enjoyed by an ordinary Court of law. They may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system...."


19. The majority decision in Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi (supra), has been adopted unani: mously by the Supreme Court in Durga Shankar Mehta v. Thankur Raghuraj Singh and Ors. . Speaking for the Court, Justice Mukherji has observed that it is now well settled by the majority decision of theCourt in the case of Bharat Bank Ltd., Delhi (supra) that the expression "Tribunal" as used in Article 136 does not mean the same thing as "Court", but includes within its ambit all adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The same view has been reiterated by the Supreme Court in Associated Cement Companies Ltd. v. Sharma and Anr. (1965-I-LLJ-433).
 20. In Brajnandan Sinha v. Jyothi Narain, , it was contended that the Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a Court within the meaning of Section 3 of the Contempt of Courts Act, 1952. Rejecting the contention, the learned Judges explained in extenso the meaning of the word "Court" and held that the courts subordinate to the High Courts would prima facie mean the Courts of Law subordinate to the High Courts in the hierarchy of courts established for the purpose of administration of justice.
 21. In Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 A.C. 275, the Privy Council defined 'Judicial Power' and enumerated certain negative propositions in relation to the subject:
 "1. A Tribunal is not necessarily a court in this strict sense because it gives final decision;
 2. Nor because it hears witnesses on oath;


2. Nor because it hears witnesses on oath;
 3. Nor because two or more contending parties appear before it between whom it has to decide;
 4. Nor because it gives decisions which affect the rights of subjects;
 5. Nor because there is an appeal to a court;
 6. Nor because it is a body to which a matter is referred by another body".
 22. The following passage in Rex v. Electricity Commissioner, 1924-1 K.B. 171, was quoted with approval in Brajnandan Sinha v. Jyothi Narain, (supra).
 "An administrative Tribunal may act judicially, but still remain an administrative Tribunal as distinguished from a court, strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoc Tribunal an exercise by a Court of judicial power".
 23. Therefore, merely because a Labour Court constituted under Section 7 of the Industrial Disputes Act has certain trappings of a Civil Court, it cannot be considered to be a Civil Court. The judicial functions performed by a Labour Court are different from those performed by an ordinary Court of law. A Labour Court has no other function except that of adjudicating matters entrusted to it under the provisions of the Industrial Disputes Act. It is outside the hierarchy of the ordinary judicial system. The Code of Civil Procedure is applicable to its proceedings only to a limited extent and it is open to the Labour Court to adopt such procedure which it deems necessary. Therefore, a Labour Court cannot be considered to be an ordinary Court of law and it is only a Tribunal exercising judicial functions.


24. The Limitation Act cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication, as pointed out by the Supreme Court in A.S.K. Krishnappa v. S.V.V. Somiah, :
 "The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of objective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. The provisions of Sections 3 to 28 of the Limitation Act cannot be applied to situations which fall outside their purview. These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them".
 25. Repelling the contention that the provisions of the Indian Limitation Act apply to proceedings like an election petition filed under the Representation of the Peoples Act, the Supreme Court held in K.V. Rao v. B.N. Reddi, :


"But, an election petition stands on a different footing. The trial of such a petition and the powers of the court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment; the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion, however, the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the Peoples Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act".
 26. Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation, as laid down by the Supreme Court in Hukumdev Narain Yadav v. Lalit Narian Mishra . In the Representation of the People Act, 1951, there is no provision expressly excluding the applicability of Sections 4 to 24 of the Limitation Act to the proceedings in an election petition. However, having regard to the scheme and the nature of the remedy provided under the Representation of the People Act, the learned Judges held that the provisions of the Limitation Act were by necessary implication excluded and that they cannot be called in aid to supplement the provisions of the special Act, viz., the Representation of the People Act.


27. The Andhra Pradesh Shops and Establishments Act, 1966 is a labour welfare legislation containing all the relevant provisions relating to the conditions of service including disciplinary proceedings against the employees working in the shops and establishments. The Legislature itself has left it to the State Government to prescribe the period of limitation and the manner of disposal of the first appeal. In the exercise of rule-making power, the State Government made Rule 21 of the Andhra Pradesh Shops and Establishments Rules prescribing the period of sixty days as limitation for preferring a first appeal and specifically conferred the power on the first appellate authority to admit an appeal presented after the expiration of the period of limitation if it was satisfied that there was sufficient cause for condoning the delay. The disposal of the first appeal is summary in nature. The Labour Court constituted under Section 7 of the Industrial Disputes Act is designated as the second appellate authority by the Legislature itself. Under Section 41(3) of the Act, the Legislature itself has prescribed the period of limitation of thirty days for filing the second appeal but has not considered it necessary to confer the power on the second appellate authority to admit an appeal preferred after the iexpiration of the period of thirty days. So far as the termination of services of the employees working in the shops and establishments is concerned, the provisions of the Act and the Rules made thereunder prescribe as to what acts and omissions constitute misconduct. The procedure to be followed in taking disciplinary action is also prescribed thereunder. Against an order of termination, right of first appeal and second appeal is provided. Finality is attached to an order passed by the second appellate authority and it shall be given effect within such time as may be specified in the order of the authority. Any amount directed to be paid to a party can be recovered as if it were a fine by a Magistrate. It may be that keeping in view the beneficial nature of the legislation and the need to obviate indefinite prolongation of proceedings, the


the beneficial nature of the legislation and the need to obviate indefinite prolongation of proceedings, the Legislature did not intend to confer the power on the second appellate authority to admit an appeal which was presented after the prescribed period of limitation had expired. If the intention of the State Legislature is to achieve finality of the proceedings expeditiously without giving scope to the parties to protract the litigation, such intention cannot be defeated by extending the application of the provisions of the Limitation Act to the proceedings under the Act. In labour welfare legislation, it is not uncommon for the Legislature, to prescribe certain limitations in the filing of appeals. For example, under the provisions of the Workmen's Compensation Act, even a first appeal preferred under Section 30 of that Act to the High Court against an order of the Commissioner of Workmen's Compensation cannot be entertained unless a substantial question of law is involved. Thus, it appears to us that the Andhra Pradesh Shops and Establishments Act constitutes a self-contained code so far as the conditions of service of the employees working in the shops and establishments including the disciplinary proceedings if any initiated against them and the right of appeal provided in respect of such proceedings, are concerned. Therefore, having regard to the scheme and the nature of remedies provided under the Shops and Establishments Act and the rules made thereunder, it has to be held that the application of the provisions of Section 5 of the Limitation Act to the filing of appeals under the Act and the rules has by necessary implication been excluded.


28. Let us now refer to the decisions wherein the applicability of the provisions of the Limitation Act to the proceedings arising under the special Acts has been dealt with. Under Section 93 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, limitation of sixty days for preferring an appeal has been prescribed. It contained a specific provision that the provisions of the Indian Limitation Act, 1908 shall apply for the purposes of the computation of the period of limitation. In view of the provisions of Sub-section (2) of Section 29 of the Limitation Act, 1963, an argument has been advanced before a Division Bench of this Court that the provisions of Sections 4 to 24 of the Limitation Act apply to the appeals filed under the Tenancy Act as there is no express exclusion of the provisions of the Limitation Act. Accepting the contention, the Division Bench has held in Guru Batchaiah v. K. Ahalyabai, 1975 (2) APLJ 66 that Sections 4 to 24 of the Limitation Act are applicable to the appeals and revisions filed under the Tenancy Act. However, another Division Bench of this Court has taken a contrary view in K. Venkaiah and Ors. v. K. Venkateswara Rao and Anr. holding that Section 5 of the Limitation Act, has no application to the proceedings under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. In this case, the applicability of Section 5 Limitation Act has been considered with reference to the provisions of Section 29(2) of that Act. Relying on the decision of the Supreme Court in Athani Municipality v. Labour Court, Hubli, (supra), the Division Bench has pointed out:


"Bound as we are by the aforesaid decisions, we must hold that even though the authorities under the Hyderabad Tenancy Act are 'Courts' within the meaning of the said expression employed in Section 5 of the Limitation Act, yet it has no application, for the reason that they are not Civil Courts, and hence the Limitation Act itself has no application to proceedings before such authorities, except, of course, in so far as they are expressly made applicable by the special enactment".
 This view of the Division Bench has been upheld by the Supreme Court in Sakuru v. Tanaji .
 29. The learned counsel for the appellant has drawn our attention to the judgment of a learned Judge of this Court in T. Satyanarayana, In Re. 1985 (2) ALT 9, in support of his contention that the period between the date of the application for a copy of the full text of the judgment and the date of receipt of the same, can be excluded. Having regard to the provisions of Rule 21(2)(f) of the Andhra Pradesh Shops and Establishments Rules, 1968, which reads as follows.
 "The result of the appeal shall be communicated to the parties as soon as possible. Copies of the orders shall also be furnished to the parties if required, by them. The copies shall be on stamped papers to be furnished by the parties". the learned Judge held that the period between the date of the application for copy of the full text of the judgment and the date of receipt of the same, should necessarily be excluded. In that case, the question whether the provisions of the Limitation Act are applicable to the proceedings arising under the A.P. Shops arid Establishments Act did not arise for consideration.


30. Mr. A.K. Jayaprakash Rao, the learned counsel for the appellant, has placed reliance on a decision of the Full Bench of the Gujarat High Court in Shaikh Mohammedbhi Khan Hussainbhai & etc. v. The Manager, Chandrabhanu Cinema and Ors. 1986 LIC 1749, in support of his contention that a Labour Court is a court and not a Tribunal. The question that has been considered in that case was whether the Labour Courts and the Industrial Tribunals constituted under the Industrial Disputes Act are Courts subordinate to the High Court within the meaning of Section 2 read with Section 10 of the Contempt of Courts Act. It is no doubt true that the Full Bench has held that the Labour Courts and the Industrial Tribunals are courts subordinate to the High Court within the meaning of the Contempt of Courts Act. But, that decision has no relevance in a case arising under the A.P. Shops and Establishments Act, in which the question that has to be decided is whether the operation of the provisions of the Limitation Act can be extended to the proceedings arising under the Act.


31. The Full Bench of the Allahabad High Court has held in Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur, , that the time spent in prosecuting the application for setting aside the order of dismissal or appeal filed under the U.P. Sales Tax Act can be excluded in computing the period of limitation for filing the revision, by the application of the principle underlying Section 14(2) of the Limitation Act, inspite of the fact that the learned Judges have categorically held that the word 'Court' occurring in Sub-section (2) of Section 14 of the Limitation Act signifies a Court in stricto sensu and does not include an authority who acts as a Tribunal or a Quasi-Judicial Tribunal. Disapproving that view, the Supreme Court held in The Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur, as under:
 "there is no room for argument that the Appellate- Authority and the Judge (Revisions) Sales-Tax exercising jurisdiction under the Sales Tax Act, are Courts. They are merely administrative Tribunals and "not courts". Section 14, Limitation Act, therefore, does not, in terms, apply to proceedings before such Tribunals."


32. In The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma (supra), the question for consideration was whether the provisions of the Limitation Act were applicable to the applications filed under Section 16(3) of the Telegraph Act. The provisions of the Telegraph Act contemplate determination of the compensation payable under Section 10. Applications can be filed under Section 16(3) to the District Judge within whose jurisdiction the property is situate, if any dispute arises regarding the determination of the compensation under Section 10 of the Telegraph Act. On the basis of the principle "where by statutes, matters are referred for determination by a Court of Record with no further provision, the necessary implication is that the court will determine the matters as a Court", laid down in National Telephone Company Limited v. The Post Master General 1913 A.C. 546 the learned Judges of the Supreme Court held as under:
 "In the present case, the statute makes the reference to the District Judge as the Presiding Judge of the District Court. In many statutes reference is made to the District Judge under this particular title while the intention is to refer to the Court of the District Judge. The Telegraph Act in Section 16 contains intrinsic evidence that the District Judge is mentioned there as the Court of the District Judge..... Again in Section 34 of the Telegraph Act, reference is made to payment of court-fees and issue of processes, both of which suggest that the ordinary machinery of a court of civil jurisdiction is being made available for the settlement of these disputes...... The District Judge under the Telegraph Act acts as a Civil Court in dealing with applications under Section 16 of the Telegraph Act".


Referring to the changed definition of the words "applicant" and "application" contained in Section 2(a) and 2(b) of the 1963 Limitation Act, the learned Judges were of the opinion that the applications contemplated under Article 137 included the petitions originally or otherwise filed under special laws. The meaning given to the word "application" in Article 181 of the 1908 Limitation Act on the principle of 'ejusdem generis' by a two Judge Bench of the Supreme Court in Athani Municipality v. Labour Court, Hubli, (supra) was not accepted by the three Judge Bench in the Kerala State Electricity Board, (supra) case white interpreting Article 137 of the 1963 Limitation Act. The learned Judges construed Article 137 as referrable to the applications and petitions filed not only under the Civil Procedure Code but also those filed under any Act, in a Civil Court. Thus the three Judge Bench in this case has taken a different view from the one taken by the two Judge Bench and held that the provisions of the Limitation Act are applicable to an application filed under the special Act in a District Court. As already pointed out, the ratio of the decision in Athani Municipality case (supra) in so far as the appli cation of Limitation Act to the proceedings in a Civil Court is concerned, remains unaffected by this later judgment.
 33. From the foregoing discussion, it is clear that a Labour Court which has been designated as a second appellate authority under the A.P. Shops and Establishments Act, is not a Civil Court. The appeal preferred to it is under a special Act and not under the provisions of the Civil Procedure Code. Therefore, the provisions of the Limitation Act are not applicable to an application filed for condonation of delay in filing the appeal.


34. Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P. and Ors. , is a case arising under the provisions of the Motor Vehicles Act 1939. One of the contentions was that Section 5 of the Limitation Act, 1963 was applicable to an application made for renewal of a permit under Sub-section (2) of Section 58 of the Motor Vehicles Act, 1939. A permit can be renewed on an application made for that purpose and it is disposed of as if it were an application for a permit. The proviso to the sub-section reads as follows:
 "Provided that the application for the renewal of a permit shall be made-
 (a) in the case of a stage carriage permit or a public carrier's permit, not less than one hundred and twenty days before the date of its expiry; and


(b) in any other case, not less than sixty days before the date of its expiry:
 Provided further that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
 (3) Notwithstanding anything contained in the first proviso to Sub-section (2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than fifteen days after the said last date and is accompanied by the prescribed fee".


Construing these provisions, the learned Judges have held that the discretion vested in the Regional Transport Authority to entertain an ap plication for renewal of a permit is limited to only fifteen days after the expiration of the pe riod of limitation. It has been further held that the discretion shall be exercised not on any ar bitrary or fanciful grounds and it has to be exer cised in a judicial manner on well established legal principles. It has been pointed out that it could never have been the intention of the Leg islature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely on the ground that the delay is of not more than fifteen days. Sub-section (3) of Section 58 of the Motor Vehicles Act clearly meant that if the application for renewal was beyond time by more than fifteen days, the Re gional Transport Authority shall not be entitled to entertain the application, or in other words, it shall have no power to condone the delay. Thus, there is an express provision in Sub-section (3) that the delay in making the application for re newal shall be condonable only if it was of not more than fifteen days and that expressly ex cludes the applicability of Section 5 of the Limitation Act in cases where an application for renewal was delayed by more than fifteen days. In our view, this decision does not in any way help the learned Counsel for the appellant. In this case, the learned Judges did not consider the question whether the provisions of the Limitation Act were applicable to the applications filed under the Motor Vehicles Act. As the contention advanced on behalf of the appellant therein was found to be not tenable even under the provisions of Section 29(2) of the Limitation Act, 1963, it was rejected on that ground. Therefore, this decision cannot be taken as the one laying down the principle that the provisions of


ground. Therefore, this decision cannot be taken as the one laying down the principle that the provisions of the Limitation Act are applicable to the applications arising under the provisions of the Motor Vehicles Act.


35. Another decision cited by the learned counsel for the appellant is the one rendered by the Supreme Court in a case arising under the provisions of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953. Under this Act, appeal is provided to the Divisional Commissioner. The two-Judge Bench of the Supreme Court has held in S. G.V. Samithi Ltd. v. Mahabir Sugar Mills (P) Ltd. that the provisions of Section 5 of the Limitation Act, 1963 are applicable to the appeal before the Divisional Commissioner. The learned Judges have proceeded on the footing that the Divisional Commissioner exercises the appellate powers under the Act as the Revenue Court and not as a persona designata. Therefore, Section 5 of the Limitation Act is held to be applicable to the appeal filed before him. Under Section 5(2) of the Civil Procedure Code, "Revenue Court" means 'a court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of lands used for agricultural purposes'. In this decision there is no reference to the provisions of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, and the learned Judges have proceeded on the footing that the Divisional Commissioner has been acting as a Revenue Court and not as a persona designata. Therefore, it has been held that the provisions of Section 5 of the Limitation Act are applicable to the proceedings before him.


36. In a case arising under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, a two-Judge Bench of the Supreme Court in Sakuru v. Tanaji, (supra) referred to the earlier decisions of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli, (supra), Nityananda M. Joshi v. Life Insurance Corporation of India, (supra) and Sushila Devi v. Ramanandan Prasad (supra) and reiterated the following principle, holding that it was well settled by the decisions referred to above:
 "....The provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than courts such as quasi- Judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him".
 37. A Full Bench of the Kerala High Court dealt with the same question in a matter arising under the Kerala Buildings (Lease and Rent Control) Act, 1965 and expressed the view that the Limitation Act dealt only with the applications to Courts (vide Jokkim Fernandez v. Amina Kunhi Umma, (F.B.).


"This being the position, even if the power under Section 5 were to be read into a special local law by reason of the provisions of Section 29 of the Limitation Act, that power is exercisable only by Court and not by Tribunals or other authorities such as the appellate authority in this case". Subsequently, a Division Bench of the same Court had held in U. Chacko v. P. Marakkar, , that the Limitation Act was applicable only to the proceedings before a court and that the appellate authority under the Kerala Buildings (Lease and Rent Control Act, 1965 was not a Court. We consider that these decisions lay down the correct principle.
 38. Employees of State Insurance Corporation, Ministry of Labour and Employment, Hyderabad v. Andhra Pradesh State Electricity Board, Himayatnagar, Hyderabad, 1970 LIC 921 is a case arising under the Employees State Insurance Act, 1948. One of the points urged before a Division Bench of this Court was that a Claim Petition filed before the Employees Insurance Court was in the nature of a suit and therefore, the provisions of the Limitation Act were applicable. Repelling that contention, it was held that the provisions of the Limitation Act would not apply to a proceedings before the Employees Insurance Court.
 39. A learned Judge of this Court has expressed the view that the Limitation Act has no application to the proceedings before the Tribunal under the A.P. Co-operative Societies Act (vide Nellore District Co-operative Marketing Society Ltd. v. Co-operative Tribunal (Principal District Munsif), Nellore and Ors. 1987 (1) ALT 551.


40. Thus, the preponderance of judicial opinion based on well established principles of law is to the effect that the provisions of Section 5 of the Limitation Act are applicable to the proceedings in a Court and they are not applicable to the proceedings in a Tribunal.
 41. Even the provisions of Sub-section (2) of Section 29 of the Limitation Act, 1963 are attracted only when an appeal or an application under any special or local law is provided to a Court and they will not apply where such an appeal or application under special or local law is provided to a Tribunal or authority, which is not a court. The Supreme Court has made it clear in The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma (supra) that any other application contemplated under Article 137 covers only applications that are filed under any special or local law in a court and not before a Tribunal or authority.
 42. In view of the foregoing discussions, we hold as follows:
 (1) The provisions of Section 5 read with Section 29(2) of the Limitation Act, 1963 are not applicable to an appeal or an application filed before the Labour Court constituted under Section 7 of the Industrial Disputes Act, 1947 and designated as the second appellate authority under Section 41(3) of the A.P. Shops and Establishments Act, 1966.


(2) The provisions of Section 29(2) of the Limitation Act, 1963 read with Article 137 in the Schedule to the Act, make Section 5 of the Act applicable to an appeal or application filed under any special or local law in a Civil or Criminal Court in so far as and to the extent to which Section 5 is not expressly excluded and they have no application to an appeal or application filed under any special or local law before a Tribunal which is not such a Court.
 43. The questions are accordingly answered.
 44. In view of our answers to the questions referred to us and as no other question arises for consideration in this writ appeal, it is dismissed. There shall be no order as to costs.


Yarlagadda Venkakka Choudary ... vs Daggubati Lakshminarayana ... on 31 March, 1995

JUDGMENT B.K. Somasekhara, J.
 1. The judgment and decree of the learned Sub-Judge, Chirala (Mr. B. Eswara Reddy) in O.S.No. 61 of 1971 dated 9-3-1981 are challenged in this appeal. The suit was dismissed with costs. Obviously aggrieved by the judgment and decree, the appellants who are the plaintiffs in the suit preferred this appeal. The respondents are the defendants. There are two plaintiffs and 26 defendants in the suit. Defendant No. 1 died during the pendency of the suit and defendants 2 to 26 were brought on record as the legal representatives of defendant No. 1. Convenience warrants to refer the parties as plaintiffs and defendants.
 2. The suit was filed of recovery of possession of the suit schedule lands, for past mesne profits for a period of three yea. s, for future mesne profits after enquiry, for costs and for such other reliefs as the Court may deem fit to grant in the nature of the case. The suit schedule lands are subjected to the plaint schedule as follows:
 (1) D. No. 346/3   Seri dry land measuring  Ac. 4.40
(2) D. No. 331/2     -do-   Ac. 4.49
(3) D. No. 477     Seri wet land   Ac. 4.21
(4) D. No. 481/3     -do-   Ac. 0.50
(5) D. No. 142/1     -do-   Ac. 3.86
               ---------

       Total  Ac. 17. 46
        ---------


All the defendants resisted the suit. Defendants 1,6 to 12,14,16 tol9 filed individual written statements, whereas defendants 2,3,4,5,13, and 15 filed join t written statement. Defendant No. 17 adopted the written statement of defendant No. 18 and defendants 13 and 15 adopted the written statement of defendant No. 1. The other defendants have not filed any written statement. Certain facts in the pleadings find no controversy. Plaintiff No. 2 is the son of plaintiff No. 1 Defendant No. 1 is the only son of one late Daggubati Chowdaramma (refers to a man, but not a woman). Rajamma is his sole daughter and the sister of defendant No. 1. She was married to the first plaintiff in the year 1925. Chowdaramma died in or about the year 1938 and Rajamma died in October, 1968. The relationship between the family of the plaintiffs and Chowdaramma including defendant No. 1 was quite cordial till some time prior to the date of the suit.


4. Defendant No. 1 has contended that the suit of the plaintiff has been the result of asserting his rights over the property in the share and the interest in the film business carried on by him and plaintiff No. 1 and that is a counter blast to his defence in CS. No. 101/1965 and C.S. No. 108/1971 in the High Court of Madras. Plaintiff No. 1 who was doing film business persuaded defendant No. 1 to become a partner in Shambu Films whose production of a film became a very big success realising huge profits which the plaintiff alone appropriated for himself. Therefore, the other partners questioned him and when he did not oblige them to share the properties, one Yarlagadda Radhakrishna Murthy a cousin of plaintiff No. 1 filed C.S. No. 101 of 1965 in the High Court of Madras for dissolution of the partnership and for accounts. Defendant No. 1 was the sole defendant in that suit. He was prevailed upon by plaintiff No. 1 not to enter appearence or contest the litigation so that he could amicably settle the matter with his client. Defendant No. 1 acted accordingly. It appears that plaintiff No. 1 settled the matter in the suit with other partners by paying them certain amounts without settling the claim of defendant No. 1. Therefore, he had to contest the suit by engaging an Advocate pressing his claim as against plaintiff No. 1. In the mean while defendant No. 2 filed C.S. No. 108/1971 in the High Court of Madras which was contested by plaintiff No. 1. Therefore, the present suit was filed after exchange of notices between the parties, as a counter-blast, in the circumstances stated above.


5. The plaintiff pleaded that during his visit at Karamchedu, he learnt that defendant No. 1 had been conveying portions of the suit schedule lands to defendants 6 to 19 who are his dose associates and bench men and that they had been inducted into possession of the same only to create obstacles in the way of the rights of the plaintiffs. It is contended that such conveyances under the document are devoid of any consideration and are void. DefendantNo. 1 while denying these allegations has pleaded and contended that during the life time of Rajamma only, he sold away some of the suit lands in favour of defendants 6 to 19 under the registered sale deeds in his own right and with the full knowledge of the plaintiffs and Rajamma. It is contended that such alienations cannot be challenged by the plaintiffs. Defendants 2 to 5 have practically adopted all the contentions of defendant No. 1 in their written statement. They have denied the gift deed executed by defendant No. 1 in favour of Rajamma. They have contended that such a gift deed cannot create any right or title in favour of Rajamma much less on the plaintiffs after her death. These defendants being the members of the joint family and defendants 4 and 5 being the undivided sons of defendant No. 1 who are the members of the joint family in the coparcenery, are not bound by such a gift deed. They have also contended that such a gift deed is not acted upon. They have further contended that they have perfected their right and title to the suit schedule properties to the extent of their share by adverse possession.


6. Defendants 6 to 19 who are the alienees of some of the suit schedule lands have raised almost similar contentions in their written statement in answer to the plaint allegations. In regard to the nature of the suit properties and the right of defendant No. 1 as contended by him, they have fully supported defendant No. 1 The Gift deed in favour of Rajamma said to have been executed by defendant No. 1 is contended to be absolutely null and void to the extent of the properties purchased by them from defendant No. 1 They have contended that the sales in their favour were for legal necessity for the benefits of the joint family of defendant No. 1 and his children. They have pleaded that before the sales in their favour, defendant No. 1 consulted plaintiff No. 1 and his wife Rajamma when they came to attend the marriage of defendant No. 2 in February, 1962, when they assured him that the properties in question belonged to the joint family and that they had no right in them since the gift deed in favour of Rajamma was a sham and nominal one created for the purpose of screening the properties from the effect of Land Ceiling legislation and with such assurance, these defendants purchased the lands from defendant No. 1. Therefore, the plaintiffs are estopped from challenging the alienations of the lands by defendant No. 1 in favour of these defendants. All of them contend that they are the purchasers of the lands from defendant No. 1 for consideration and without notice of the alleged defect in titled of defendant No. 1.


7. Defendant Nos. 6 to 19 have pointed out that the portions of the lands they have purchased were for valuable considerations. Defendant No. 6 purchased some portion of land in D. No. 477 for a consideration of Rs. 4,000/- in the year 1965. Defendant Nos. 7,8,9,10,11,12 to 19 have purchased specified portions of lands from out of the land in D. No. 477 which is Item No. 3 of the suit schedule for valuable considerations under registered sale deeds. They have pleaded that they came into possession of the suit lands which they purchased as above immediately on the dates of the sale and continued as such till the date of the sale and continued as such till the dates of the sale and continued as such till the date of the suit. Since neither the plaintiffs nor Rajamma were ever in possession of such lands within the 12 years next before the suit, and since defendant No. 1 had perfected his title to them by adverse possession by the date of the suit, these defendants are also entitled to such a benefit of perfection of title by adverse possession.
 8. The plaintiffs gota registered notice issued through their Advocate to the defendants before the suit to which some of them have sen reply wherein defendant No. 1 had admitted the gift deed in favour of Rajamma but set up the defence as above. They have contended that such a defence is totally false. The plaintiffs have sought for a decree as prayed for. The defendants have contended that the suit is not maintainable and the plaintiffs are not entitled to the decree as prayed for or to any extent. Inter alia they have also raised certain contentions regarding the valuation of the suit and the cause of action, thereby sought for the dismissal of the suit with costs.


9. The parties to the suit went to trial on the following issues which were settled on the basis of the pleadings:
 (1) Whether the gift deed dated 12-4-1957 was executed nominally to avoid the land ceiling or agricultural holdings as pleaded by the 1st defendant and whether such gift is maintainable at all?
 (2) Whether the gift deed dated 12-4-57 is a colourable and nominal transaction, and whether it is not acted upon as pleaded by the defendants?
 (3) Whether the 1st plaintiff and his wife represented to the alienees that the gift deed was only a sham and nominal one and that they have no title to the suit schedule properties and if so, whether the plaintiffs are estopped from questioning the validity of the alienations?
 (4) Whether the plaintiffs and late Rajamma acquiesced in sales in favour of the alienees?
 (5) Whether the defendants 6 to 15 and 17 to 19 are bona fide purchasers for value without notice of any alleged defect in the title of the 1st defendant?
 (6) Whether the conveyances and contracts executed by defendants 1 to 5 in favour of defendants 6 to 19 are true, valid and binding on the plaintiffs?
 (7) Whether the plaintiffs have no title to the suit schedule properties?
 (8) Whether the defendants acquired title to the suit schedule properties by prescription and pleaded by them?
 (9) Whether the plaintiffs are entitled for possession of suit schedule properties and if so, to what profits they are entitled?
 (10) Whether the court fee paid is correct?
 (11) Whether the suit is bad for mis-joinder or non-joinder of parties?
 (12) To what relief?


(12) To what relief?
 10. During the trial both oral and documentary evidence were produced. Plaintiff No. 1 examined himself as P.W1 and his brother as P.W. 2. For the defendants, defendant No. 2 examined himself as D.W1, Defandant No. 20 as D.W.3, defendant No. 6 as D.W.I 1, defendant No. 17 as D.W.13, defendant No. 10 as D.W.14, defendant No. 9 as D.W.15, defendant No. 16 as D.W.16 and they have also examined the witnesses - D.Ws. 2, 4 to 10,12 and 17. By way of documentary evidence Exs. Al to A20 were got marked for the plaintiffs whereas, Exs.B-1 to B-36 were got marked for the defendants.
 11. After affording an opportunity of being heard to both the sides and on considering the materials before him, the learned Sub Judge held Issues 1, 2, 4 and 7 against the plaintiffs, Issue No. 3 in favour of the plaintiffs, Issue Nos. 5, 6, 8 and 9 as unnecessaiy and issued No. 12 also against the plaintiffs and consequently dismissed the suit directing the parties to bear their respective costs.
 12. In this appeal the findings of the learned Sub Judge against the plaintiffs and the ultimate decision are challenged as wrong and illegal and deserves to be set aside. In brief the findings of the trial court on the issues comprising the following questions are challenged:
 (a) Nature of the suit lands as joint family properties of Chowdaramma and defendant No. 1.
 (b) gift of suit lands to Rajamma at the time of marriage by way of Pasupukunkuma.


(c) proof of gift deed supporting the gift by way of Pasupukunkuma.
 (d) possession)f suit lands with defendant No. 1 only to manage them on behalf of Rajamma.
 (e) management of suit lands of plaintiffs through P.W2.
 (f) payment of produce from suit lands to Rajamma by defendant No. 1 both directly and through P.W2.
 (g) regarding the gift deed in favour of Rajamma acted upon by the conduct of parties to document and circumstances - the nominal nature of the document - the similar gift deeds, having been acted upon including the partition deed between the 1st defendant and his sons.
 (h) alienations of suit lands in favour of defendants 6 to 20 to void gift deed an to set up adverse possession.
 (i) rejection of circumstances in favour of the plaintiffs and acceptance of circumstances against the defendants as proof.
 (j) dismissal of suit.
 13. Meharchand Noori, the learned Advocate for the appellants plaintiffs has raised similar contentions in support of such grounds with all serious efforts and sincerity whereas Mr. Harina the learned Advocate for lite defendants made similar efforts with sincerity to repeal such contentions.
 14. Thus in the back-ground, the grounds of appeal and the contentions and the counter contentions, the following points arise for consideration:
 (1) (a) whether the findings of the learned Sub Judge on issues 1, 2, 4, 7 and 12 against the plaintiffs are justified?
 (b) if not which of the findings are not correct?
 (2) Whether the learned Sub Judge was right in disbelieving the case of the plaintiffs and in dismissing the suit based on the findings of the issues?


(3) Whether any of the findings of the learned Sub Judge on any of the issues deserve to be set aside or modified to any extent?
 (4) (a) Whether the appeal deserves to be allowed?
 (b) Whether the suit of the plaintiffs deserve to be decreed?
 (5) To what order?
 15. Although the nature of the suit properties was found to be a controversy, in view of the pleadings, they being the joint family properties of Chowdaramma and defendant No. 1 appears to be conceded or atleast not disputed. No one in the case at no time either testified or fortified that any document about Chowdaramma acquiring the suit schedule lands as his own or that he enjoyed them as his self-acquired properties. The evidence brooks to concession that Chowdaramma was a rich man in Karamchedu Village owning extensive properties including agricultural lands to an extent of Ac. 200.00 to Ac. 250.00 etc. That obviously covers the suit schedule lands also in the absence of any definite stand or evidence to hold to the contrary. In fact with a presumptive understanding of the matter, the question was not either agitated or atleast pressed before the trial court not the learned Sub Judge has dealt with the same. This Court is convinced that the suit schedule lands were the joint family properties of Chowdaramma and defendant No. 1 since the relevant time from which the plaintiffs are trying to lay a claim over the same.


16. There is no specific issue whether at all there was a gift of the suit properties by Chowdaramma in favour of his daughter Rajamma at the time of her marriage with Plaintiff No. 1 as Pasupukunkuma, but this question has been -dealt with as an incidental question while dealing with issue Nos. 1, 2 and 7. The clear plea in the plaint, the denial of the same in the written statements and the evidence sought to be produced or demolished by the parties during the trial and the deliberations over the same by the learned Sub Judge to give a definite rinding on the question has made it not only a fact in issue, but an issue arising out of the pleadings, a trial over the same and a categoric finding against the plaintiffs to be challenged in this appeal. Therefore, even without raising a formal issue on the question, there is a decision after trial which is permissible in law. Thus the question is being examined in this appeal as if an issue was raised and decided in the suit and challenged in this appeal. It was rightly pointed out that the question is also covered under issue No. 7 since the title cannot be established without proving the gift. The definite case of the plaintiffs is that the suit lands were gifted to Rajamma the wife of plaintiff No. 1 by her father Chowdaramma by way of Pasupukunkuma. The plea and particulars in this regard are to be found in plaint Para-3(b) as follows:


"The suit property was given as a marriage gift and towards 'Pasupukunkuma' by the late Chowdaramma to his only daughter Rajamma as is usual among the affluent Kamma families. The marriage of Rajamma took place in 1925 with the first plaintiff. The second plaintiff is their only son. From the beginning till recently the relationship between the family of the plaintiff and that of his brother-in-law i.e. the first defendant was very cordial. Chowdaramma died in or about 1938 leaving his daughter Rajamma and his son who is the first defendant herein. The property that was gifted was in the possession and enjoyment of Rajamma."
 Admittedly there was no gift deed much less any document evidencing the gift. For the first time in year 1957, Ex. A3, the document evidencing such a gift came into existence. The circumstances under which such a document came into existence are pleaded in para 3(c) of the plaint as hereunder:
 "In 1953 the first plaintiff along with his wife Rajamma left for Madras and settled down there where he was able to acquire extensive properties. Naturally the management of the suit property was entrusted to the first defendant who used to send the income to the said Rajamma. Later on, Rajamma felt that it would be better in the interest of all concerned to have a registered instrument evidencing the gift, and the first defendant executed a registered gift deed in respect of the plaint schedule land on 12-4-1957. Rajamma continued to enjoy the proceeds from the suit land almost till the end of her life though she never bothered about the details of income in view of her immense affection for her brother i.e. the first defendant herein. Accordingly, the first defendant used to send the income through Sri Y.Ranganayakulu, who is the brother of the first plaintiff. The gift was a completed transaction."


To repeat, there was no document evidencing the gift in between 1925 and 12-4-1957 the date of Ex.A3. The defendants have categorically denied the above pleas. However, defendant No. 1 coming out with certain explanations as to why be executed Ex.A3 and as to the circumstances under which it came into existence. To read into the relevant portions in his written statement:


"This defendant states that at the time of his father's death he was a minor and the first plaintiff being son-in-law of the family, was the eldest member in the family and consequently all the people including his (this defendant's) mother had a very soft corner for the 1st plaintiff and had practically reverence for him without understanding the guileful nature of the plaintiff. Consequently he was guiding all the affairs of the family, particularly because of his experience in litigation and business. Actually this defendant in view of respect given by his own mother to the first plaintiff, had reposed active confidence in the 1st plaintiff and was implicitly obeying all the directions given to him by the 1st plaintiff from time to time. This defendant states that the gift deed dated 12-4-1957 was brought about by the 1st plaintiff on the representation that impending legislation is likely to impose ceilings on agricultural lands and consequently it would be better to create some documents to make it appear that all the properties were not being held by the same individual, though they are to be enjoyed by the same i.e. this defendant. This defendant simply believed in the representation made by the 1st plaintiff and in view of the active confidence he had reposed in him and without suspecting the bona fides of the 1st plaintiff herein and in accordance with the advice and direction of the 1st plaintiff herein the gift deed came into existence. In fact even before and at the time of execution of the said gift deed the 1st plaintiff assured this defendant that the gift deed would not convey any right, title or interest to his wife since the property belonged to the joint family of the 1st defendant and his sons and would only be a colourable deed to screen the properties from the impending legislature and Land Reforms........The deceased Rajamma had nothing to do with the transactions in question and as aforesaid in the circumstances stated above the entire scheme was brought about


transactions in question and as aforesaid in the circumstances stated above the entire scheme was brought about only by the 1st plaintiff herein.......This defendant states that the gift deed was never acted upon and that the recitals therein were false and were got up by the 1st plaintiff to give an apparent, osensible reality to the said deed. Even after the execution of the said deed this defendant was and is in possession and enjoyment of the properties."


The other defendants have practically adopted the contentions of defendant No. 1 as above.
 "The legal position may be sumarised thus: The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage but the right of the father or his representative to make such a gift is not confined to the marriage occasion-It is a normal (moral ?) obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the life time of the father or thereafter.


It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity of the resonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, die fact that two gift deeds were executed instead of one, cannot make the gift any the less a valid one."


Such a legal position is not varied in Perumalakka v. Kumarasan Balakrishnan, , when it was stated by the Supreme Court that while movable ancestral property can be gifted out of affection to the wife or daughter or a son, which is within reasonable limits, immovable property can be gifted only for pious purposes i.e. charitable and religious purposes. It can be gifted to the daughter in fulfilment of an antenuptial promise. It cannot however, be gifted merely out of love (principle borrowed from Gurramma v. Mallapa, ). Therefore, within the expressions used by the Supreme Court, the gift by way of Pasupukunkuma can be very well brought within the emphasized portions supra. In substance, the gift by way of Pasupukunkuma would be a valid gift which may be given by the father or his representative by custom or by convenience at the time of marriage or later, by virtue of a normal moral obligation to subsist till is is discharged. Perhaps, with such a settled legal principle as above, many precedents have recognized such a gift by custom among Hindus without actually explaining them. Despite the context of expression may bear a scared marital gift for her marital life, it is in essence a provision for the maintenance of the daughter conveying the idea that she should have independent means of her own to satisfy her personal needs. Similar expressions - 'choli bongdi' of 'haldi kumkum' are held to convey such idea in Sri Rajah Malraju Venkata Ramakrishna Kondala Rao v. Sri Rani Rajyalakshmi Vapayamma Rao Zamindarini Garu, . The rule of customary gifts by way of 'pasupukunkuma' to a daughter so crystalised into Hindu Law create and connote an absolute right in her for all legal purposes (Chatrathi Jagannadha Rao v. Jatmal


in her for all legal purposes (Chatrathi Jagannadha Rao v. Jatmal Madanlal Jakotia Firm, AIR 1958 A.P. 662). Such pasupukunkuma gifts are held to be legal and valid and accepted in Land Ceiling Law proceedings - under Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 upto till today (C.K. Anavema Reddy v. A.P. Land Reforms Appellate Tribunal, (1977) 1 APLJ 33, Bhubaneswar Naik Santhosh Raj v. Special Tahsildar (Land Reforms), , Jasti Ramakrishna Rao v. Authorised Officer, 1980 (1) An.W.R. 255 and G. Thima Reddy v. The Special Thasildar, Land Reforms, .


18. Sri Mehar Chand Noori, the learned Advocate for the appellants is well fortified to his legal postulations of the title of the appellants through Rajamma subject to proof of the plea of gift by way of Pasupukunkuma. Sri Harinath, the learned Advocate for the respondents strikes a note of dissent in his contest for an oral and unregistered gift to legally exist particularly after the Transfer of Property Act, 1882 came into force with effect from 1-7-1882. The law is square and bare to bear his contest. A gift under Hindu Law may be made orally or in writing (pages 476 and 477 of Mulla' Hindu Law, 16th Edn.). But the vexed question whether a gift requires a writing and registration remained for a long, was about the effect of Sections 123 and 129 of Transfer of Property Act after it came into force. In the earlier stages of the application of such provisions, the question was not so much about the requirement of the written and registered gift deed, but about the other requisites of the gift deed, namely, existence of the gift and the delivery of possession of the gifted property. In that context it was being postulated that mere registration of a gift deed did not pass title from the donor to the donee (pages 476 and 477 of Mulla's Hindu Law supra). But the question appears to be no longer vexed or res integta. The doubt commenced with Allam Gangadhar Rao v. V. Gangarao, , V. Poornachandra Rao v. State of A.P. (1977)1 APLJ 132 and C.R.P. No. 2177 of 1977 dated 9-3-1978 (A.P.) ended with reference to Division Bench and decision in Bhubaneswar Naik Santoshrai v. The Special Tahsildar, Land


in Bhubaneswar Naik Santoshrai v. The Special Tahsildar, Land Reforms, Tekkali, . Their Lordships C. Kondaiah, C.J. and Seetharam Reddy,)., as they then were, considered the questions whether gift made in favour of a daughter or sister without any deed of conveyance being registered, is liable to be excluded from the holding of the donor for the purpose of Section 8 of the A.P. Land Reforms Act, 1973. We are not concerned with the second question. The first question was held in the negative. Referring to Serandayya Pillai v. Shankaralingam Pillai, (1959) 2 MLJ 502 and Commissioner of Gift Tax v. Ch. Chandrasekhara Reddy, 1977 (1) An.W.R. 82 = 1976 ALT 121 (NRC), the question was considered and answered - to read in their own words:


"What becomes main fest from the conspectus of above case law is that a daughter, under Hindu Law had at the time of 'Manu' a right to share in the father' property along with her brothers. After a considerable passage of time, the ultimate remnant is that a father is under an obligation to maintain her within the meaning of Section 3 of the Hindu Adoptions and Maintenance Act which includes the reasonable expenses of her marriage and therefore any property moveable or immovable, given to her for or at the time of marriage cannot be termed as a 'gift' within the meaning of Section 122 of T.P. Act as the essential ingredients of gift are conspicuous by their absence in this transaction of giving the property to the daughter by way of Tasupukunkuma' which is both involuntary as well as for consideration. Once the said transaction is taken out of the ambit of Section 122 of T.P. Act, it is not at all obligatory that the said document, if it is in writing, requires any registration within the meaning of Section 123 of T.P. Act and under Section 17 of the Registration Act. In fact it is quite apparent that the transaction of giving away the property by way of "Pasupukunkuma" could very well be done orally and if any instrument in writing has been brought into existence, the same does not require any registration as the said instrument can be used for the proof of transaction by way of evidence........"
 Since this view is being consistently followed by this Court (Jasti Ramkrishna Rao's case (9 supra) and G. Thimma Reddy's case (10 supra)), it is binding on us. Therefore, the contention to the contrary presented by Sri Harinath, the learned Advocate for the respondents can no longer subsist.


19. The stage is thus ripened to know whether there was really a gift of the suit lands as Pasupukunkuma by her father. Significally enough, the categoric plea in the plaint para 3(b) extracted above means, a presumptive gift towards Pasupikumkuma to his only daughter Rajamma as usual among the affluent Kamma families. Uncontrovertedly Chowdaramma and the appellants belong to Kamma family. Mr. Mehar Chand Noori, the learned Advocate for the appellants tried to present a plea of custom among affluent Kamma families, as a rule in regard to gift towards Pasupukunkuma. Mr .Harinath, the learned Advocate for the respondents repels it in the absence of a definite plea in the plaint in this regard except an improvement in the evidence. Apparently there is no plea of custom among Kamma family in regard to such a gift nor any legal recognition to such a custom among such families is established. As rightly pointed out, such a custom was brought out only in the testimony of plaintiff No. 1 when he stated that there is a custom in Kamma community, to give some land to the bride by her parents at the time of marriage, that the suit lands were given to Rajamma as Pasupukunkuma and this custom is followed invariably in affluent Kamma families and that at the time of marriage, his father-in-law gifted the suit properties to his wife as Pasupukunkuma. P.W.2 his own brother repeated it to testify that the suit lands were gifted to Rajamma as Pasupukunkuma at the time of marriage and there is such a custom in their community. Neither plaintiff No. 1 nor P.W2 has elaborated such a plea of custom to complete the so-called plea in the plaint. Mr. Meharchand Noori, the learned Advocate for the appellants-plaintiffs appears to be not correct in


Noori, the learned Advocate for the appellants-plaintiffs appears to be not correct in contending that the contesting defendants, in particular defendant No. 1 and h is other family members, have conceded such a custom and therefore, there was no necessity either to plead or prove such a custom. They have specifically denied such a custom although it has come in their evidence that some properties were given to the daughters of defendant No. 1 by way of Pasupukunkuma. Even such transactions are sought to be explained in the written statement of defendant No. 1 including the partition to evade the operation of Land Ceiling Laws. The question whether really a gift by way of Pasupukunkuma was given is required to be examined from the evidence and it is independent from the question whether there is an established custom among Kamma families to gift the properties including the lands, towards Pasupukunkuma. At the worst, the family custom is admitted to be pleaded or proved. This Court in a latest pronouncement in Garimella Annapoornayya v. K. Appalanarasimha Murthy, , had the occasion to deal with certain questions and answered them in relation to plea and proof of custom. It has been held therein that:


".....As a first measure, such a custom should be pleaded in specific terms what the custom is, upon which a party is relying on, regard within the scope of Order VI Rule 3 of C.P.C. appears to be settled by the Supreme Court in more than one precedent........."


It is also difficult to accept the contention of the learned Advocate that such a custom among such communities is judicially noticed. It is true that the Courts can notice the existence of such a custom under Section 57 of the Evidence Act which dispenses the proof of the same by virtue of Section 56 of the Evidence Act. Therefore, where it is not established as a custom not judicially noticed, such a custom can be set up and established like any other custom and there is no bar to raise such a plea and proof. It may be noted that what is judicially noticed in precedents supra is that there exists a custom among Hindus to give some properties including immovable properties to a daughter or sister at the time of marriage or alter towards Pasupukunkuma and not specifically that such a custom exists in particular communities like Kammas etc, as alleged or contended. Only to that extent, the court can take judicial notice under Section 57 of the Evidence Act which requires no proof by virtue of Section 56 of the Evidence Act. But still the fact remains whether the plaintiffs have proved such a fact of gifting the suit lands to Rajamma by her father, as rightly stated by the learned Sub Judge. The learned Sub Judge has rejected the proof of the alleged gift of suit lands to Rajamma towards Pasupukunkuma by her father. Number of reasons are given in support of the same. This court finds no reason to the contrary as they are based on evidence and unexceptionable. It is true that Chowdaramma had only a son and a daughter. He was a rich man., He owned more than Ac.200.00 of land. It was not improbable if he had either contemplated or given any properties to his only daughter Rajamma towards Pasupukunkuma. There was no reason for providing her maintenance as, admittedly plaintiff No. 1 himself was a rich man. Even the extent of the suit lands is not so much as to doubt


himself was a rich man. Even the extent of the suit lands is not so much as to doubt the donor's intention to make them a gift towards Pasupukunkuma. It is nobody's case that nothing else was given to plaintiff No. 1 or Rajamma at the time of marriage except the suit land s to make it a part of the marriage presentation. As we can understand, the tone and tenor of the case and the evidence of the plaintiffs, such a gift was some thing more than the normal presentations or gifts at the time of marriage. Except plaintiff No. 1 and his brother P.W2, no other person has come forward to speak about such a gift. The marriage of plaintiff No. 1 with Rajamma took place in the year 1925. At that time plaintiff No. 1, P. W2 and Rajamma were not only minors, but practically they were the infants aged not more than 10 to 15 years. It is pointed out that P.W. 2 was hardly 10-year-old in the year 1925. Their mental maturity, their knowledge and their understanding of the decision of elders and their conduct in giving certain gifts including Pasupukunkuma can never be a safe basis to accept the proof of the same. The testimony of plaintiff No. 1 and his brother P.W 2 is found to be totally unsatisfactory in regard to the proof of such a gift. If we go by the requisites of a gift in Hindu Law, it appears to be mandatory that a gift under the law is not valid unless it is accepted and accompanied by delivery of possession of the subject of the gift from the donor to the done. Therefore, even while not making the provisions of the Transfer of Property Act applicable to such a gift towards Pasupukunkuma, the law appears to be that even where there is a registered deed by a donor, there cannot be any proof of acceptance by the donee


there is a registered deed by a donor, there cannot be any proof of acceptance by the donee and the acceptance must be proved as a independent fact (Item 358 at pages 476 and 477 of Mulla's Hindu Law 15th Edn.). The testimony of P. Ws 1 and 2 does not indicate that there was any manner of acceptance of gift by Rajamma from her father at any time till she died, except stating that she was in possession of the same and was receiving the produce from defendant No. 1. It is true that the delivery of possession of the gifted property may constitute the acceptance of gift. In this case, it is found that the possession of the suit lands never passed on to Rajamma at any time nor she exercised any act of possession over the same. The lands remained in the possession of defendant No. 1 throughout. There was no mutation of the record s in the name of Rajamma so far as those lands are concerned, there was no payment of land revenue by her, there was no mention of her name in any revenue records in regard to the suit lands at any time till she died. Regarding the payment of the usufruct or the income from the suit lands to Rajamma, the matter has remained only in the testimony of plaintiff No. 1 and P.W.2. Their interested testimony is found to be conflicting and inconsistent with the realities. It is true that admittedly, Rajamma and defendant No. 1 were on cordial terms throughout. When her husband Plaintiff No. 1 was himself a rich man having lot of movable and immovable properties in Karamchedu village arid in Madras and acquired lot of money in film-business, it is highly improbable that she had a need to insist payment of any usufruct from defendant No. 1, nor in her good relationship with the only brother, would ask him to pay the income from the land. Even assuming that he spared