JUDGMENT <NAME>, J.

1. This appeal is directed against an appellate judgment of <ORG>, dated the 19th May, 1950, which affirmed the judgment of a single Judge of the Original Side of that Court passed on 9th February, 1949, in Suit No. 2481 of 1947.

2. The plaintiff, who is the appellant before us, is the widow of one <NAME>, a wealthy Hindu resident of Calcutta, while the defendant, who is still an infant, is the only son of <NAME> born of his first wife <NAME>, who died during the lifetime of her husband. The controversy between the parties centers round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as shebait of an idol named <NAME> founded by <NAME> and his mother, either solely of jointly with the defendant, her step-son.

3. To appreciate the points that have been canvassed before us in this appeal, it will be necessary to narrate a few antecedent facts about which there is no dispute between the parties. It may be stated here that neither side adduced any evidence before the trial judge during the hearing of the case and the questions raised in the suit were argued as questions of law turning on the construction of the indenture which created the endowment as well as of the provisions of the Hindu Women's Rights to Property Act (Act XVIII of 1937 as amended by Act XI of 1938).

4. It appears that one <NAME>, who was the adoptive father of <NAME>, died on 28th of August, 1907, leaving behind him, his widow <NAME> and the adopted son <NAME>, who was then a minor. On February 11, 1910, <NAME> obtained letters of administration to the estate of the deceased <NAME> limited during the minority of the adopted son. On June 13, 1920, the widow purchased a house property in the city of Calcutta - being premises No. 14, Syakrapara Lane - out of the monies belonging to the estate of her husband, and on October 10, 1934, she conveyed the said property to <NAME> who had by that time attained majority.

5. On the very same day that this property was conveyed to <NAME>, <NAME> and <NAME> together executed an indenture, by which certain properties described in Schedules A and B of the document and including premises No. 14 Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that <NAME> had, with the consent and concurrence of her son, established and consecrated the said idol and located it in premises No. 14, Syakrapara Lane, and that she had been performing the worship and periodical festivals of the deity according to Hindu rites. The document lays down in detail the various rites, ceremonies and festivals of the idol that are to be performed daily or at specific periods, and the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties. A remuneration of 25 per cent. of the net income of the debutter property has also been provided for the shebait or shebaits for the time being. After declaring the various trusts, the indenture proceeds to provide for appointment of shebaits and for devolution of shebaitship in the following manner :-

"That the said Sm. <NAME> doth hereby constitute and appoint herself the shebait of the said Thakur for the during the term of her natural life and doth hereby declare that after her death her son the said <NAME> shall become the shebait of the said Thakur and after his death his wife <NAME> and after her death the heirs of the said <NAME> shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits. Provided however that in case the said <NAME> shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be competent for the said <NAME> to appoint by will or otherwise a shebait who would act as such after the death of his said wife as aforesaid but in case the said <NAME> shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law."

6. It is not disputed that <NAME> acted as shebait till her death in 1938 and that after her death <NAME> became the shebait. <NAME>, the first wife of <NAME>, who is referred to in the indenture as stated above, died on 14th January, 1942, leaving her infant son <NAME>, who is the defendant in the suit. Soon after her death, <NAME> married the plaintiff <NAME> as his second wife and within five months after this marriage <NAME> died on the 4th of July, 1942. The present suit was filed in <ORG> on 29th August, 1947, by <NAME> and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the defendant, she being a co-heir of her stepson under the provisions of the Hindu Women's Rights to Property Act . There was a further prayer claiming a right of residence in premises No. 14, Syakrapara Lane.

7. The written statement that was filed on behalf of the defendant denied the plaintiff's claim of shebaiti right, either exclusively in herself or jointly with the defendant, and asserted that the defendant was the sole shebait under the terms of the deed of endowment as well as under law. The defendant also contended that the plaintiff was not entitled to any, right of residence in the premises mentioned above.

8. The learned trial Judge by his judgment dated 9th of February, 1949, held that the plaintiff was neither the sole shebait of the deity nor was she entitled to claim shebaiti rights jointly with the defendant and that the Hindu Women's Rights to Property Act was inapplicable to devolution of shebaiti rights at all. It was held further that as the plaintiff was not in law the natural guardian of the defendant, she could not claim to exercise the rights of a shebait on behalf of the defendant as his natural guardian so long as the defendant remained a minor. The learned Judge held, however, that the plaintiff's claim to a right of residence in premises No. 14, Syakrapara Lane, was well-founded and she was held entitled to relief in that respect. The result was that save and except giving the plaintiff a declaration of her right of residence in premises No. 14, Syakrapara Lane, all the other prayers of the plaintiff were dismissed.

9. Against this decision the plaintiff preferred an appeal which came up for hearing before an appeal Bench of <ORG> consisting of Sir <NAME> and <NAME> The learned counsel appearing in support of the appeal did not seriously challenge that part of the decision of the trial Judge which negatived the plaintiff's claim to act as a sole shebait either under the terms of the indenture of endowment or as a guardian of the defendant during the period of his minority. The only question pressed was whether the plaintiff was entitled to be a joint shebait with the defendant. The learned Judges rejected this contention of the appellant primarily on the ground that the identical point was raised and considered by <ORG> in <CITATION> [ F.C.R. 1] and it was held there that succession to shebaitship was not in any way altered or affected by the provisions of the Hindu Women's Rights to Property Act . The appeal was thus dismissed and the plaintiff having obtained a certificate under article 133(1)(c) of the Constitution has now come up in appeal to this Court.

10. The substantial contention raised by Mr. <NAME>, who appeared on behalf of the plaintiff-appellant, is that under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to <NAME> after the death of <NAME> and after her death it is to vest in the heirs of <NAME>. As <NAME> died during the life-time of <NAME>, the grant of the shebaiti right in her favour lapsed and the heirs of <NAME> are, therefore, entitled to come in as the next shebaits after <NAME>'s death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened and under the Hindu Women's Rights to Property Act , which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve under section 3 of the Hindu Women's Rights to Property Act upon both the plaintiff and the defendant jointly. Assuming, however, for argument's sake, that the expression "property", as used in the Hindu Women's Rights to Property Act , does not include shebaiti right, it is argued by the learned counsel that it is a well-established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu Women's Rights to Property Act has amended the general law of inheritance in certain matters, the same alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. <NAME> - though it was not pressed seriously - that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of <NAME> would have priority over other heirs. It is true that the document speaks only of <NAME>, the wife of <NAME> who is to come as shebait after his death; but it is argued that the word "<NAME>" is merely descriptive of the word "wife" and whoever would happen to be the wife of <NAME> at the date of his death, would be entitled to succeed to his shebaiti rights.

11. Mr. <NAME> appearing for the respondent stated at the outset that he would not dispute as a proposition of law that shebaitship is property of some kind, the devolution of which is governed, in the absence of any direction to the contrary given by the founder, by the ordinary rule of succession under the Hindu law. He contended however, that the Hindu Women's Rights to Property Act , which is a piece of special legislation enacted for a special purpose, does not use the expression "property" in a wide and unlimited sense; and it would appeal clear from the provisions of the different sections of the Act that it could not have had in contemplation, and does not purport to affect, the rules of succession relating to the special and somewhat anomalous type of property which shebaitship admittedly is. The learned counsel referred in this connection to the provisions of sections 3 and 5 of the Act as well as to the preamble which sets out its object, and considerable stress was laid upon the pronouncement of <ORG> in <CITATION> [ F.C.R. 1]. The other contention put forward by the learned counsel turns upon the construction of the relevant clause in the indenture referred to above which lay down the mode of devolution of the shebaitship, and his argument was that reading the clauses as a whole, it would be clear that the intention of the executants of the deed was that the "issue" of <NAME> would succeed to him as shebaits in the first instance and that no other heir of <NAME> basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of <NAME> was alive. A further question relating to the construction of the deed, raised by Mr. <NAME>, was that the words "heirs of the said <NAME>" occurring in the deed are to be construed not as words of devolution but of direct gift to the heirs under the deed and consequently the expression "heirs" must mean those who could legally claim as heirs at the time when the grant was made; and any subsequent change in the law could not affect the position.

12. We will first advert to and examine the provisions of the Hindu Women's Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is.

13. The exact legal position of a <ORG> may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of <ORG> in <CITATION> [48 I.A. 302] that the relation of a <ORG> in regard to <NAME> property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the <ORG> or mahant is a mere manager. But though a <ORG> is a manager and not a trustee in the technical sense, it would not he correct to describe the <ORG>ship as a mere office. The <ORG> has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the <NAME> property. As <ORG> observed in the above case, in almost all such endowments the <ORG> has a share in the usufruct of the <NAME> property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the <ORG>, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of <ORG>i both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests <ORG>ship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of <ORG> in <NAME> v. <NAME> [I.L.R. 60 Cal. 452] and this decision of <ORG> was approved of by <ORG> in <CITATION> [63 I.A. 448] and again in <CITATION> [70 I.A. 57]. The effect of the first two decisions, as <ORG> pointed out in the last case, was to emphasize the proprietary element in the <ORG>i right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. "According to Hindu law," observed Lord <NAME> in <NAME> v. <NAME> [16 I.A. 137], 'when the worship of a Thakoor has been founded, the <ORG>ship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution." Unless, therefore, the founder has disposed of the <ORG>ship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, <ORG>ship like any other species of heritable property follows the line of inheritance from the founder.

14. Turning now to the Hindu Women's Rights to Property Act , it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down :-

"Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of section 3 shall apply where a Hindu dies intestate."

15. Section 3(1) then provides :-

"When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law....... dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son :

Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son;

Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son."

16. Sub-sections (2) and (4) of section 3 are not material for our present purpose. Sub-section (3) lays down :-

"Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate............."

17. Section 4 lays down that the Act is not to operate retrospectively. The only other section in the Act which has been referred to in the course of arguments is section 5 which runs as follows :-

"For the purposes of this Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect."

18. It will be seen that section 3(1) abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husband's property only in default of male issue and she is now entitled to the same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached to section 3(1) to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3(1) speaks of "any property". The expression prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of "property" in law. Of course, the property must be heritable property in respect to which alone the question of succession may legitimately arise.

19. Reliance has been placed by Mr. <NAME>, first of all, upon the object or purpose for which the statute was passed. The object, as set out in the preamble, is to give better rights to women in respect to property; in other words, the object of the legislation is to confer larger rights upon women in comparison to what they enjoyed under the ordinary Hindu law. In our opinion, the preamble does not throw any light on the question as to whether the Act does or does not include within its ambit rights and interest of a shebait.

20. Mr. <NAME> next invokes in support of his contention the provisions of sub-section (3) of section 3 , which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the "Hindu woman's estate". It is argued that this distinction between the Hindu woman's estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applies to <NAME>i right, for the nature of the interest enjoyed by a male or a female <NAME> is exactly the same. This argument does not appear to us to be at all convincing. Precisely the same thing happens when the <NAME>i right devolves upon a female heir under the ordinary law of inheritance. If a <NAME> dies leaving behind him a widow and no male issue, the widow would succeed to <NAME>ship under ordinary law but her rights in respect of the <NAME>i would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the <NAME>i right itself and they exist irrespective of the fact as to whether the <NAME>ship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female <NAME>s may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu woman's estate. When Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death not to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a <NAME>. After her death the <NAME>i right would not pass to her stridhana heirs but would go to heirs of the last <NAME> [Anuragi Kuer v. <NAME>, A.I.R. 1939 Pat. 1]. Sub-section (3) of section 3 , therefore, is of no assistance to Mr. <NAME>'s client.

21. Mr. <NAME> then contends that section 5 of the Hindu Women's Rights to Property Act affords a clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible. This section, it may be noted, was added by the amending Act XI of 1938 and the object apparently was to explain what is meant by "dying intestate". It says that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has not made a "testamentary" disposition which is capable of taking effect. Mr. <NAME> would read the section as qualifying the meaning of the word "property" as used in section 3(1) or rather as engrafting a limitation upon it. What he says is, that the language of the section would be wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shebaitship, no testamentary dispossession is possible. This argument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will disposing of his properties. A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is "non-testamentable", as Mr. <NAME> puts it, no testamentary disposition of such property is possible or could take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is nothing in any of the provisions of the Act from which an inference could be drawn that the expression "property" as used in section 3(1) has a limited or restricted interpretation and is not applicable to shebaitship, which is recognized as property in Hindu law.

22. Reference may now be made to the decision <ORG> in <CITATION> [ F.C.R. 1], upon which the learned appellate Judges of <ORG> practically based their decision. The facts of that case stripped of unnecessary details are that one <NAME> who was a resident of Madras and owned considerable properties, moveable and immoveable, both within the outside British India, died leaving behind him two widows and the widow of a predeceased son. The deceased had left a will but the legacies given by the same exhausted only a small portion of his estate so that with regard to the rest which was of considerable value he died intestate. The deceased was in possession of several trust properties in regard to which there were certain religious and charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs. The son's widow instituted a suit in the court of the Subordinate Judge at Devakottai for administration of the estate and for partition and separate possession of a half share of the same, basing her claim upon the Hindu Women's Rights to Property Act . The suit was resisted by the two widows as well as by the executors appointed under the will of the deceased and it was pleaded, inter alia, that the Hindu Women's Rights to Property Act was ultra vires the legislature and that in any event it was not applicable as the propositus did not die intestate. The trial court held first that the Act was not ultra vires and was operative on all properties with the exception of agricultural lands and this finding was affirmed by <ORG> on appeal and also on further appeal to the <ORG> by the majority of the Judges of that Court. The second finding of the trial Judge was that the deceased died intestate with regard to a considerable amount of property and consequently the plaintiff was entitled to a half share thereof. <ORG> affirmed this finding with this variation that her claim to moveable situated outside British India was not allowed but the <ORG> reversed the decision of <ORG> on this point and restored that of the trial Judge. The other point and that is the point with which we are concerned in the present case, related to the devolution of the trust estates which were held by the testator. Both the courts below concurred in holding that these trusts should go to the heirs of the deceased under the ordinary Hindu law and that the provisions of the Hindu Women's Rights to Property Act were not attracted to the trusts. This decision was upheld by the majority of the Judges in the <ORG> and that point was actually dealt with by <NAME> in his judgment. The view expressed by the learned Judge is that the Hindu Women's Rights Property Act was intended to apply only to properties beneficially owned by the propositus and it was not applicable to rights in the nature of trusteeship. It seems to us that, property construed, this decision does not stand in the way of the appellant. In the first place, we do not know at all what he nature of these trusts was. The learned Judge observed himself in his judgment that there was little or no evidence as to the terms of the foundations in respect of any of the trusts "managed" by the deceased. This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere manager of the trusts and in respect of some of them at least he was the manager jointly with other persons. In <ORG>, Sir <NAME> expressly held that in no sense could the trust properties be regarded as the separate property of the testator and consequently Act XVIII of 1937 could not apply to such a case. <NAME> observed with reference to the documents relied upon by the learned counsel for the appellant that they only provided for "management by his heirs." At any rate, we have no materials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties. The indications, on the other hand, are clearly in the opposite direction. In these circumstances, no question arises in the present case of controverting the proposition of law that <NAME> purported to lay down, namely, that the Hindu Women's Rights to Property Act could not govern succession to property in respect to which the propositus had no beneficial enjoyment. It is not possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is normally involved would not be governed by the provisions of the Act. There are indeed one or two observations of the learned Judge in his judgment, not very definitely expressed, from which it is not impossible to draw an inference in favour of the respondent, but we think that they should be construed in the light of the facts and the actual decision in the case. The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be noted that not only the word "shebaitship" has not been used by the learned Judge but he does not even confine his remarks even to religious trusts. Moreover, trusteeship is not certainly equivalent to shebaitship. On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had no personal interest in the trust property. The object of the Act, as stated above, is to give better rights to women in respect of property. If a trusteeship, even if it is regarded as property, carries with it no emoluments or any beneficial interest for the trustee and consists of nothing else But a bundle of obligations and duties, it might possibly be said that the giving of share in such rights to a Hindu widow would not in any wan improve her position. But the position would be obviously different if there is a beneficial interest of a substantial kind inseparably connected with the duties of a particular office. They again, the learned Judge possibly used the expression "private property" in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to section 3(3) of the Hindu Women's Rights to Property Act is, as we have indicated already, not much helpful for the purpose of construing the Act. After all, we must take the decision as it stands and it is not right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to lay down. We think that a very proper view of the effect of this decision of the <ORG> has been taken by a Division Bench of <ORG> in <CITATION> . There the question arose in connection with the rights associated with the office of archakatvam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the <ORG> in <CITATION> [ F.C.R. 1] has no application to a case relating to the office of archakatvan. It is pointed out by <ORG> that though the observations of the learned Judge in the <ORG> are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of the hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait of shebaits for the time being as their remuneration. Our conclusion, therefore, is that there is nothing in any of the provisions of the Hindu Women's Rights Property Act which excludes from the scope of operation of the Act succession to shebaitship is a recognized form of property in Hindu Law.

23. Assuming that the word "property" in Act XXIII of 1937 is to be interpreted to mean property in common and ordinarily accepted sense and is not to be extended to any special or peculiar type of property, even then we think that the other contention of Mr. <NAME> is perfectly sound. Succession of shebaitship, even though there is an ingredient of in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. While the general law now been changed by reason of Act XVIII of 1937, there does not appear to be any cogent reason why the law as it stands at present should not be made applicable in the case of devolution of shebaitship.

24. The last contention of Mr. <NAME> that under the indenture itself the wife of <NAME> and <NAME> particularly has been given rights of succession to shebaitship prior to any issue of <NAME> manifestly untenable and as the learned counsel was not at all serious in pressing this point, we consider unnecessary to discuss it any further.

25. It remains for us now to advert to and consider the other contentions raised by Mr. <NAME> which depend upon the construction of the relevant clauses in the indenture. It may be stated at the outset that we are not at all impressed by the argument of the learned counsel that the words "heirs of the said <NAME>" occurring in the document are to be construed as words not of inheritance but of grant. Such construction would be against the language and the whole tenor of the document. It is to be noted that <NAME> was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who consecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that <NAME> should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of <NAME>, <NAME>, the founder, himself, was to be the shebait and save and except the provision made in favour of <NAME>, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is no indication of any intention to treat the heirs as the objects of an independent gift. It may be noted that this identical point was raised before <ORG> in <CITATION> [ F.C.R. 1] with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by <NAME> that it was not reasonable to construe such words as words of gift and not of devolution.

26. On the question of construction Mr. <NAME>'s main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it will be manifest that the executants of the deed intended that the issue of <NAME> were to have preference over other heirs in the matter of succession to shebaitship; and that an heir who is not an issue could not come in so long as an issue remained alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of <NAME>, her son, the said <NAME> Mullick, shall become the shebait, after him his wife <NAME>, and after her death, the heirs of the said <NAME> Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said <NAME> shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be competent for <NAME> to appoint by will or otherwise a shebait who would act as such after the death of the said wife; but in case the said <NAME> Mullick shall happen to die without any issue, the shebaitship of the said <NAME> after the death of his wife shall devolve upon his heirs under Hindu Law. Mr. <NAME> lays stress upon the proviso, particularly the last portion of it and it contains, according to him, a clear direction that it is only on the failure of issue that the heirs of <NAME> can come in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. <NAME> invites us to hold that the word "heirs" in the previous clause should be taken to mean only the issue of <NAME>.

27. We do not think that the interpretation suggested by the learned counsel is the proper one. A proviso is normally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word "heirs" cannot normally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is concerned there is nothing in the language or in the context to suggest that the word "heirs" has not been used in its ordinary or natural sense. Mr. <NAME> argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of construction that all the parts of a document should be read together and no portion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression "heirs" has not been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to <NAME> to appoint a shebait, who would come as such after his death in the contingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be noted that the word "issue" includes both son and daughter and the power of appointment cannot be exercised by <NAME> even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular contingency that is mentioned here is fulfilled, <NAME> would be entitled to appoint a shebait, although no such power can be deduced from the general clause. In case the contingency does happen but the wife is not given any power of adoption and no appointment is also made by <NAME>, the consequence would certainly be that the other heirs of <NAME> would succeed as shebaits and this is what is laid down in the concluding portion of the proviso. The expression "his heirs" at the end of the proviso would certainly mean heirs other than the son and daughter of <NAME>. As <NAME> actually left a son, the contingency contemplated by the proviso did not arise at all and in these circumstances the proviso is to be ignored altogether for purposes of construction and it is not proper to attempt to spell, out of it, by implication, something which is not only not in the main provisions but is contradictory to it. We think, therefore, that this contention of Mr. <NAME> also must fail.

28. The result, therefore, is that, in our opinion, the appeal succeeds. The judgment and decree of both the courts below are set aside except the declaration of the right of residence of the plaintiff which was given by the trial court and not disturbed in appeal. In addition to that, it will be declared that the plaintiff is entitled to joint shebaitship with the defendant in respect of the <ORG> created by the indenture of October 10, 1934. We direct the taxed costs of both the parties in all the courts to be paid out of the <ORG> estate.

<NAME>, <NAME>

29. I agree with the conclusion reached by my three learned brothers in the judgment just now pronounced, but I would like to add a few words on two points on which I do not see eye to eye with them fully.

30. In support of his contention that the word "property" in the Hindu Women's Rights to Property Act cannot be construed so comprehensively as to include a shebait right, Mr. <NAME> referred to sub-clause (3) of section 3 , which speaks of "any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate"; and he urged that the conception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention. In dealing with it, we are not thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteristics as constituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a "Hindu woman's estate" as contrasted with a full or absolute estate taken by a male heir ? Does a male heir get higher rights than a Hindu widow ? and if so, what are they ? So far as a shebaitship is concerned, the office does not ensure beyond the lifetime of the holder, whether male or female, and is generally inalienable. It is res extra commercium. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alienability arises out of the nature of the property and not out of the nature of the estate taken by the heir. In the very nature of things, there can be no alienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in <CITATION> [ F.C.R. 1] by Sir <NAME>, where, referring to sub-clause (3) of Section 3 , he observes :-

"This provision will be appropriate enough in relation to private property where the woman's estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office, the law makes no difference between the interest taken by a male heir and the interest taken by a female heir."

31. But it does not decisively outweigh the several considerations set forth in the judgment just now delivered by my learned brother <NAME> for construing the word "property" in a wider sense so as to include the shebaiti right also. It there is no legal objection to a woman being a shebait under Hindu law, there is no particular reason why she should be excluded from succeeding to the same under an Act which imposes no restriction or prohibition either in express terms, or by necessary implication.

32. The next point relates to the construction of the deed of indenture executed by <NAME> and <NAME>. I am of the opinion that the technical rules of interpretation of provisos and exceptions with reference to their scope and legal effect, adopted in construing statutes should not ordinarily be imported in interpreting deeds and documents executed by laymen, In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main clause or provision; and we must look not merely at the form of the language but its substance, the governing idea or purpose of the deed, the context and the surrounding circumstances togather the real meaning or intention of the executant. Judged in this light and adopting a broad construction, it appears to me that what <NAME> had in mind when he executed the indenture was, as made clear in the proviso, that his issue (born of his loins) or any person whom his wife may adopt on his authority, should succeed to the shebaiti in the first instance; and secondly, in default of such contingency, the shebaitship should go to any person who may be nominated in this behalf by his will; and thirdly, in default of issue (born or adopted) and in default of nomination by will (which is necessarily implied), the right was to devolve upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preceding clause. In this view, the respondent will succeed to the office in preference to the appellant.

33. But the construction placed on the indenture by my learned brothers is also a possible one and I do not desire to express any dissent from the result they have reached.

34. Appeal allowed.


PETITIONER: SALES TAX OFFICER, <NAME> AND ANOTHER Vs. RESPONDENT: M/S. SHIV RATAN G. MOHATTA DATE OF JUDGMENT: 12/02/1965 BENCH: <NAME>, S.M. BENCH: <NAME>, <NAME>, <NAME>CJ) <NAME>, M. <NAME>, J.C. CITATION: 1966 AIR 142 1965 SCR (3) 71 CITATOR INFO : RF 1975 SC1652 (12) ACT: Constitution of India. Arts. 226 and 286(1)(b)--Questions of fact to determine whether sale in the course of import--Therefore if <ORG> sales tax leviable--Whether should be decided in writ proceedings. HEADNOTE: The Sales Tax Officer rejected the assessed's claim that he was not liable to be assessed to sales tax in respect of certain .sales of cement imported from Pakistan because (i) he was not a. dealer within the meaning of s.2(f) of the Rajas than Act 29 of 1954, and (ii) the sales in question were in the course of the import within the meaning of Art. 286(1)(b) of the Constitution. In the order of assessment, there was no discussion of the question of applicability of Art. 286(1) (b). The assessee therefore filed a petition under Art. 226 challenging the assessment order on the grounds taken before the Sales Tax Officer and also claiming that the latter had failed to consider the impact and effect of Art. 286(1)(b) on the facts of the case. The <ORG> objected to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but <ORG> overruled this objection for the reason, inter alia, that the petitioner had challenged the appellant's jurisdiction to assess him to. sales tax in view of the. provisions of Art. 286(1) (b). Upon dealing with the merits of the case, <ORG> held that on the facts of the case it was clear that the sales in question took place when the goods were in the course of import and therefore, by virtue of Art. 286(1)(b) were not liable to sales tax. The court therefore quashed the order of assessment. On appeal to this Court, it was contended on behalf of the <ORG> that <ORG> should have refused to entertain the petition as many of the crucial facts had not been brought on the record by the respondent, and further-more, it was not established that the cement was sold in the course of import into India. HELD: <ORG> should not have decided the disputed questions of fact, but should merely have quashed the assessment order on the. ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case. [77 B] OBITER: <ORG> should have declined to entertain the petition, as in this case there were no exceptional circumstances to warrant the exercise of the extraordinary jurisdiction under Art. 226. It was not the object of Art. 226 to convert <ORG> into original or appellate assessing authorities whenever the assessee chose to attack an assessment order on the ground that a sale was made in the course of import and was therefore exempt from tax. The fact that an assessee might have to deposit sales tax when filing an appeal could not in every case justify his bypassing the remedies provided by the Sales Tax Act . There must be something more in a case to warrant the entertainment of a petition under Art. 226 , something going to the root of the jurisdiction of the Sales 72 Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. [75 <CITATION> , A.I.R. 1961 S.C. 1506, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 652 of 1964, Appeal from the judgment and order dated May 7, 1963 of <ORG> in D.B. Civil Misc. Writ Petition No. 157 of 1962.

<NAME>, Advocate-General for Rajasthan. <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J. This appeal by certificate of fitness granted by <ORG> is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by <ORG>, Jodhpur City, in so far as it levied sales tax on the turnover of Rs. 23,92,252.75 np.

The respondent, <ORG> <NAME>, which is a partnership firm having its head office at Jodhpur, hereinafter referred to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed to sales tax in respect of the above turnover because, firstly, the assessee was not a dealer within s. 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXlX of 1954) with respect to this turnover, and secondly, because the sales were in the course if import within Art. 286 (1)(b) of the Constitution. Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within s. 2(f) of the Rajasthan Sales Tax Act, without adverting to the second ground. The facts on which the assessee had relied upon to substantiate his second ground were these. <ORG>, Hyderabad (Pakistan), hereinafter called <ORG>, manufactured cement in Pakistan. <ORG>, hereinafter called <ORG>, entered into an agreement with <ORG> Milkhiram and <ORG>, Bombay, for the export of cement manufactured in Pakistan to India. <ORG> of India entered into an agreement with the said <ORG> Milkhiram & Sons for the purchase of, inter alia, 35,000 long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan. <ORG> appointed the assessee as its agent, broadly speaking, to look after the import and the sale of the imported cement. The modus operandi adopted by the assessee for the sale of the cement was as follows. It would obtain from a buyer in Rajasthan an order under an agreement, a sample of which is on the record The agreement fixed the price and the terms of supply. By one clause the assessee disclaimed any responsibility regarding delay in dispatch and non-receipt of consignment or any loss, damage or shortage in transit due to any reason whatsoever. The agreement further provided that "all claims for loss, damage or shortage, etc., during transit will lie with the carriers and our payments are not to be delayed on any such account whatsoever." It was further provided in the agreement that the dues were payable in advance in full, or 90% in advance and the balance within 15 days of billing plus sales tax and other local taxes. Clause 6 of the agreement is in the following terms:

"A Post Card Loading Advice will be sent to you by the Factory as soon as the wagons are loaded in respect of your orders, and it will be your responsibility to arrange for unloading the consignment timely according to Railway Rules. Ourselves. and the suppliers will not be responsible for demurrage etc. on any account whatsoever. If the consignment reaches earlier than the Railway Receipt, it is the responsibility of buyer to arrange for and get the delivery timely against indemnity bond etc. All the Railway Receipts etc. will be sent by registered post by the Suppliers in Pakistan.".

After this agreement had been entered into, the assessee would send despatch instructions to <ORG>. These instructions indicated the name of the buyer-consignee and the destination, and provided that the railway receipt and D/A should be sent by registered post to the consignee. These instructions were sent with a covering letter to <ORG> requesting that these instructions be passed on to <ORG> for necessary action. <ORG> would then forward these despatch instructions to <ORG>. Later, <ORG> would advise the consignee that they had "consigned to <ORG>, Karachi, the particular quantity as per enclosed railway receipt and invoice." <ORG>, Karachi, would endorse the railway receipt in favour of the consignee and send it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt. The Sales Tax Officer did set out most of these facts and the contentions of the assessee in the assessment order but disposed of the case with the following observations:

"All the above went to prove that the assessee was an Agent of the non-resident dealer for the supplies in the State. The Assessee was an importer and hence submitted an application to <ORG> for the same. It booked orders and issued sale bills. Under the terms of an agreement of appointment of Agent, sale was to be effec-

ted by the Agent. Again while obtaining orders from the buyers under condition 5 Sales Tax was to be paid by the buyers to the assessee. Thus to all intents and purposes the assessee is a dealer who is liable for payment of Sales Tax to the State. They have rightly collected this amount from the buying dealers and retained with them. This should come to the Government.".

We can find no discussion in the order on the question raised by the assessee that the sales were made in the course of import within Art. 286(1)(b) of the Constitution.

The assessee then filed a petition under art. 226 of the Constitution and raised two contentions before <ORG>, namely, (1) that the Sales Tax Officer failed to consider the impact and the effect of Art. 286(1)(b) on the facts of the case, and (2) that the Sales Tax Officer illegally held that the petitioner for all intents and purposes was a dealer liable to pay sales tax. The <ORG> raised an objection to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but <ORG> overruled this objection on the ground that "the contention of the petitioner is that in view of Art. 286(1)(b) of the Constitution, the respondent had no jurisdiction to assess the petitioner to pay the sales tax on the sale of goods in the course of the import into the territory of India", and that even if there was no total lack of jurisdiction in assessing the petitioner to pay sales tax. the principle enunciated in <NAME> v Ram chand <NAME> (1) applied, and it was a case which should not be dismissed in litnine.

Then <ORG> proceeded to deal with the merits of the case. It first dealt with the question whether the petitioner was a dealer within the meaning of s. 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said s. 2(f) .

Then it proceeded to deal with the question whether the sales had taken place in the course of import. <ORG> held that in the circumstances of the case these sales had not occasioned the movement of goods but it was the first sale made by <ORG> and Sons to <ORG> which had occasioned the movement of goods. Secondly, it held that in the circumstances of the case "the property in goods after the delivery had been taken by the petitioner on behalf of <ORG> passed to <ORG> and simultaneously to the ultimate buyers. Thus the property in the (1) [1962] 1 S.C.R. 753.

goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in course of import. In view of the authority of their Lordships of <ORG> in <CITATION> , ('), it must be taken that the sale took place when the goods were in the course of the import and they should not be liable to the payment of the Sales Tax by virtue of Art. 286(1)(b).". In the result, <ORG> quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute. The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from <ORG> filed this appeal.

The learned Advocate-General has raised two points before us: First, on the facts of this case <ORG> should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import within Art. 286(1)(b). Regarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxability of the turnover depended on where the property passed in each consignment. This involved consideration of various facts and, according to him.the crucial facts had not been brought on the record by the assessee on whom lay the onus to establish that the sales were in the course of import. He says that the assessee should have proved that each railway receipt was endorsed by <ORG>, Karachi, to the buyer before each consignment crossed the frontier.

We are of the opinion that <ORG> should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Art. 226. It was not the object of art. 226 to convert <ORG> into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is so. does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act ? Surely not. There must be something more in a case to warrant the entertainment of a petition under art. 226 , something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. But as <ORG> chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage.

(1)[1960] 2 S.C.R. 852.

Regarding the second point, the learned Advocate- General .argues that the onus was on the assessee to bring his case within Art. 286(1)(b) of the Constitution in respect of the sales to the various consignees. He says that there is no evidence on record as to when <ORG> endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and without this evidence it cannot be said that the title to the goods passed to the ultimate buyer at Khokhropar or in the course of import. He further urges that it would have to be investigated in each case as to when <ORG> endorsed the railway receipt and when the goods crossed the customs barrier. He says that it is not contested that the ultimate buyer took delivery of goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him. it is only when the delivery was taken by the buyer in Rajasthan that the title passed. By that time, according to him, the course of import had ceased.

We do not think it necessary to consider the various arguments addressed by the learned Advocate-General or the soundness of the view of <ORG> on this point, because we are of the opinion that <ORG> should not have gone into this question on the facts of this case. The Sales Tax Officer had not dealt with the question at all, and it is not the function of <ORG> under art. 226 , in taxing matters, to constitute itself into an original authority or an appellate authority to determine questions relating to the taxability of a particular turnover. The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law. Under the Rajasthan Sales Tax Act, and other Sales Tax Act s, the facts have to be found by the assessing authorities. If any facts are not found by the Sales Tax Officer, they would be found by the appellate authority. and it is not the function of <ORG> to find facts. <ORG> should not encourage the tendency on the part of the assesses to rush to <ORG> after an assessment order is made. It is only in very exceptional circumstances that <ORG> should entertain petitions under art. 226 of the Constitution in respect of taxing matters after an assessment order has been made. It is true, as said by this Court in <CITATION> (1) that it would not be .desirable to lay down inflexible rules which should be applied with rigidity in every case, but even so when the question of taxability depends upon a precise determination of facts and some of the facts are in dispute or missing, <ORG> should decline to decide such questions. It is true that at times the assessee alleges some additional facts not found in the assessment order and the <ORG>, after a fresh investigation, admits these facts, but in a petition under art.

(1)[1962] 1 S.C.R. 753.

226 where the prayer is for quashing an assessment order, <ORG> is necessarily confined to the facts as stated in the order or appearing on the record of the case. In this case, as already indicated, we have come to the conclusion that <ORG> should not have decided disputed questions of fact, but should merely have quashed the assessment order on the ground that the <ORG> had not dealt with the question raised before him and remanded the case. Accordingly. we allow the appeal, set aside the order of <ORG>, quash the assessment order in so far as it relates to the. turnover of Rs. 23,92.252.75 up, and remit the case to the <ORG> to decide the case in accordance with law. He will find all the facts necessary for the determination of the question and come to an independent conclusion untrammeled by the views expressed by <ORG>. We may make it clear that we are not expressing any view whether the finding of <ORG> that the property in the goods passed simultaneously at Khokhropar to <ORG> and the ultimate buyer is correct or not. There would be no order as to costs in this appeal. Appeal allowed.

B(N)3SCI --7


JUDGMENT Mootham, J.

1. This is a petition under Article 226 of the Constitution which gives rise to a question of some constitutional importance.

2. The petitioner held the substantive rank of Inspector of Police. In 1946 he was appointed to <ORG> and in the following year he was promoted to the officiating rank of Deputy Superintendent of Police.

In January, 1948, an anonymous letter was received by the Inspector-General of Police making charges against the petitioner. After making certain confidential enquiries the Inspector-General formed the opinion that the petitioner's conduct required investigation and he directed the Deputy Inspector-General of Police, <ORG>, to take the necessary action. At the same time he placed the petitioner under suspension and reverted him to his substantive rank of Inspector.

3. Under the orders of the Deputy Inspector-General of Police an enquiry was conducted by <NAME>, Superintendent of Police, <ORG>, whose report was in due course submitted to the Inspector General of Police.

4. In the meantime, on 4-11-1947, the Governor of the United Provinces had made rules known as the Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, "for regulating in certain cases the conduct of disciplinary proceedings and the award of punishment to members of the public services under the Governor's rule-making control."

Under these Rules the Governor purported to confer upon himself power to refer to a <ORG> constituted in accordance with the Rules cases relating to Government servants in respect of matters involving, 'inter alia', "corruption", "failure to discharge duties properly" and "personal immorality" as defined in the Rules.

The <ORG> was required to make such enquiry as was appropriate, and thereafter to forward its findings, together with the views of an assessor co-opted by the members of the <ORG>, to the Governor with its recommendations with regard to punishment.

Rule 10(1) declared that the Governor was not bound to consult <ORG> on the <ORG>'s recommendations, and that he "shall pass an order of punishment" in the terms recommended by the <ORG> subject to the proviso that he could, for sufficient reason, award a lesser punishment than that so recommended.

5. On the receipt of the report of the enquiry concerning the petitioner the Inspector-General of Police forwarded the proceedings to the Government and the Governor then referred the matter to a Tribunal appointed under the above-mentioned Rules (to which it is convenient to refer as the Disciplinary Rules).

The <ORG> framed three charges against the petitioner alleging that he had been guilty of personal immorality, of corruption and of failure to discharge his duties properly. It came to the conclusion that the first and third charges had been proved, and that the petitioner was guilty of corruption in respect of two of the thirty-two items which formed the subject of the second charge. The <ORG> by an order made on the 4-2-1950, recommended that the petitioner be dismissed, from the service and be paid one-fourth his salary during the period of suspension.

6. The petitioner was thereafter called upon to show cause against the action proposed to be taken against him. He submitted a representation to the Governor, but the latter by an order which was communicated to the petitioner on the 5-12-1950, directed that he be dismissed from the police force. The order communicated to the petitioner so far as it is relevant, was in the following terms:

"The Governor has considered your explanation and is of the opinion that you have not been able to clear your conduct. The Governor has therefore under the provisions of Rule 10(1) of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, ordered your dismissal from the <ORG> force with effect from the date on which this order is communicated to you".

The petitioner contends that his dismissal is illegal and he prays for the issue of a writ in the nature of 'certiorari' quashing the order of the Governor sent to him on 5-12-1950.

7. The argument for the petitioner is a threefold one.

In the first place, it is contended that the petitioner could be dismissed only by an order made by the Inspector-General or by a Deputy Inspector-General of Police; the Governor, it is said, had no power to order his dismissal either under the Disciplinary Rules, or otherwise; secondly, it is argued that the Disciplinary Rules are invalid and, thirdly, it is said that the <ORG> failed to comply with the Disciplinary Rules and the procedure followed by it in the course of its enquiry was contrary to the principles of natural justice.

8. The argument for the respondents is that the petitioner held his office at the pleasure of the Governor subject only to the provisions of Article 311(2) of the Constitution, and that the order of dismissal was an administrative order with which this <ORG> cannot interfere. In any case, it is contended that the Disciplinary Rules were rules validly made under Section 7 of the Police Act and that there was no substantial deviation by the <ORG> from the procedure prescribed by the Disciplinary Rules.

9. In England the tenure of office of a servant of the Crown is regulated by the rule of the common law that --

"Unless in special cases where it is otherwise provided, servants of the <ORG> hold their office during the pleasure of the <ORG>; not by virtue of any special prerogative of the <ORG> but because such are the terms of their engagement, as is well understood throughout the public service."

<NAME> v. <NAME>', 1895 A. C. 229 at p. 234 (A). If the terms of service in a particular case arc inconsistent with such an implied condition the <ORG>'s power to dismiss at pleasure is restricted or excluded, as in -- '<NAME> v. <NAME>', 1896 AC 575 (B), where such was held to be the effect of certain provisions of the New South Wales Civil Service Act of 1884, and in -- '<NAME> v. The King', 1934 A. C. 176 at p. 178 CO, where it was held that the terms of an appointment which prescribed its period and provided expressly that is could be terminated "for cause" excluded any implication of a power to dismiss at pleasure.

10. In India the common law rule has been replaced by statutory provision. Section 96B(1) , Government of India Act, 1919, provided that --

"Subject to the provisions of this Act, and of the rules made thereunder, every person in the civil service of the <ORG> in India holds office during His Majesty's pleasure."

This section in express terms states that office is held at pleasure; "There is, therefore," <ORG> said in -- ' <CITATION> ', AIR 1937 P. C. 31 CD), "no need for the implication of this term and no room for its exclusion".

This provision was replaced in the Government of India Act, 1935, by Section 240(1) which reads as follows :

"240 (1). Except as expressly provided by this Act, every person who is a member of a civil service of the <ORG> in India, or holds any civil post under the crown in India, holds office during His Majesty's pleasure".

(See also Sub-section (3) of Section 257 which refers to "the rule of law that, except as otherwise provided by statute, every person employed under the <ORG> holds office during His Majesty's pleasure".

The corresponding provision in the Constitution is, of course, Article 310(1) which provides that --

"310(1). Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the <ORG> or of an all-India service or holds any post connected with defence or any civil post under the <ORG> holds office during the pleasure of the President, and every person who is a member of a civil service of a <ORG> or holds any civil post under a <ORG> holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the <ORG>."

11. It is thus to be observed that in India the paramount power of the <ORG> under the 1935 Act and of the President, Governor, or <NAME>. as the case may be, under the Constitution, is subject, and subject only, to such exceptions as are expressly provided by the Act or the Constitution itself.

12. The 1935 Act expressly provided that the <ORG> would not have power to dismiss at pleasure the holders of certain civil posts, for example <NAME> (S. 220 (2)); and it further expressly provided that the <ORG>'s exercise of its power to dismiss at pleasure was subject to the qualification or restriction to be found in Sub-section (3) of Section 240 .

As a condition precedent to the dismissal of a civil servant, the <ORG> was bound to afford that servant a reasonable opportunity for showing cause against the action proposed to be taken against him: -- 'High Commr. for <CITATION> ', AIR 1948 PC 121 (E). Provision for the same exceptions to the general rule is expressly made in the Constitution in Arts 217 (1) and 311 (2).

13. The argument for the petitioner is that Section 243 of the 1935 Act constitutes a further express provision which excludes the power of the <ORG> to dismiss him; and that it has conferred upon him a right or privilege which by virtue of Section 6 of the General Clauses Act operates, after the commencement of the Constitution, as a bar to his dismissal by the Governor.

14. Section 243 reads as follows:

"243. Notwithstanding anything in the foregoing provisions of this Chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively."

It is convenient also to refer at this stage to Section 7 of the Police Act, for it is the petitioner's contention that the petitioner can be dismissed only by one of the officers named therein.

That section (which was amended by the Government of India (Adaptation of Indian Laws) Order, 1937, and by the Adaptation of Laws Order, 1950) is now, so far as is relevant for the present purpose, in these terms:

"7. Subject to the provisions of Article 311 of the Constitution and to such rules as the State government may from time to time make under this Act, the Inspector-General, Deputy Inspector-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they think remiss of negligent in the discharge of his duty, or unfit for the same."

15. The plain meaning of Section 243 of the 1935 Act appears to be this, that if with regard to the conditions of service of the subordinate ranks of the police force (as determined by or under the Police Act ) there is a conflict between such conditions and the provisions of Sections 240 , 241 or 242, the former will prevail. In other words, it is only to the extent to which the conditions of service of such police officers are inconsistent with the provisions of those sections that the operation of the latter will be excluded.

Now Section 7 of the Police Act provides that (subject to Article 311 and to such rules as the State Government may make) certain specified officers may dismiss a police officer of the subordinate ranks. There is nothing in the Act which touches on the power of the <ORG> to dismiss a police officer and nothing which is inconsistent therewith; on the other hand Rule 479(a) of the Police Regulations, which is a rule made under Section 7 of the Act, contains an express reservation of the Governor's powers of punishment with reference to all officers. The power vested by Section 7 in the Inspector-General and certain other officers to dismiss subordinate ranks of the police force is not, in our opinion, a delegation to them of the <ORG>'s power of dismissal at all but is a separate statutory power which is neither a substitute for nor restricts the constitutional power of the <ORG> to dismiss its servants at its pleasure.

This we think is the effect of the case of -- <CITATION> ', AIR 1949 PC 112 (P), where <ORG> held that the only provisions of Chap. 2 to which the introductory words of Section 243 were referable in relation to conditions of service were Sub-sections (2) and (3) of Section 240 , namely provisions corresponding to Article 311 Clauses (2) and (1) of the Constitution.

16. We are of opinion, therefore, that the pro-visions of Section 243 did not affect the power of the Governor to dismiss a police officer of the subordinate ranks at pleasure, subject only to the requirements of Section 240(2) . Putting on one side for the moment the question of the effect of Article 320 , we are also of opinion that under the Constitution the Governor has the power, subject to the provisions of Article 311(2 ), to dismiss at pleasure a police officer of the subordinate ranks.

17. It is however contended that although the, petitioner was in fact dismissed by the Governor, the latter did not act in the exercise of his discretion under Article 310 but in accordance with the advice of the <ORG> under Clause 10(1) of the Disciplinary Rules.

To this argument there are we think two answers. In the first place it is not in dispute that the petitioner was afforded a reasonable opportunity of showing cause against the action proposed to be taken against him as is required by Article 311(2 ), and that he did show cause. The letter communicating the Governor's decision to the petitioner, which we have quoted earlier in this judgment, makes it clear that the Governor was satisfied both as to the correctness of the conclusion reached by the <ORG> and as to the propriety of the sentence. On the facts of this particular case, it cannot, we think, be said that the Governor merely accepted without question the opinion of the <ORG>; he did not make the order of dismissal because he considered he had no alternative, but because he approved of the recommendation made to him by the <ORG>.

In our opinion, the Governor exercised his discretion in ordering the dismissal of the petitioner; we have held that he had the power to issue such an order, and we think it not to be material that he purported to act under Rule 10(1) of the Disciplinary Rules.

18. In the second place, in our judgment, it, makes no difference whether the Governor in arriving at his decision acted on the advice of the <ORG> or on an independent examination of the facts. Subject to the provisions of the Constitution the petitioner held his office at the Governor's pleasure. The Governor has signified his pleasure; the considerations which induced him to do so are not in our judgment justiciable.

19. The Governor's power to dismiss at pleasure is subject only to the express provisions of the Constitution. Power is conferred upon the Governor by Article 309 to make rules regulating the conditions of service of civil servants of <ORG>, but such power is subject, 'inter alia', to the provisions of Article 310 , and no rules can be made which fetter or restrict his power to dismiss at pleasure. We find ourselves in agreement, if we may say so with respect, with the views of <NAME>, on this point in -- 'Mrs. <CITATION> ', AIR 1952 Madh-B 105 (G). The Disciplinary Rules were made prior to the commencement of the Constitution, and assuming they were validly made they can, in our opinion, have no greater effect or stand on a higher footing than rules made by the Governor under Article 309. These rules (except Rule 10(1) ) are in our opinion administrative rules, and the contravention of their provisions will not confer upon the petitioner a cause of action.

In these circumstances, we do not consider it necessary to express an opinion on the allegations made by the petitioner as to the conduct of the enquiry by the <ORG>, but as we pointed out in -- '<NAME> case', Civil Misc. No. 7717 of 1951 which was argued at the same time, the fact that we do not do so must not be taken to mean that such provisions as to enquiry as are contained in the Rules should not be scrupulously observed.

20. The question remains whether it was necessary for the Governor to have consulted <ORG> before dismissing the petitioner.

Article 320 , Clause (3) (c) of the Constitution, so far as it is relevant, provides that "<ORG> ....shall be consulted

(c) on all disciplinary matters affecting a person serving under .... <ORG> in a civil capacity including memorials or petitions relating to such matters;"

This clause is subject to a proviso that "..... The Governor may make regulations specifying the matters in which either generally, Or in any particular class of case or in any particular circumstances, it shall not be necessary for <ORG> to be consulted."

Clause (5) of the same Article further provides that all regulations made by a Governor under Clause (3) must be laid for not less than fourteen days before the <ORG> or each <ORG> of the Legislature of the State, as the case may be, and shall be subject to such modifications as the <ORG> or <ORG>s of the Legislature may make during the session in which they are so laid.

21. Rule 10(1) of the Disciplinary Rules provides that the Governor "shall not be bound to consult <ORG> on the <ORG>'s recommendations." This provision was made under Section 266(3) , Government of India Act, 1935, which is in substantially the same terms as Clause (3) of Article 320. In '<NAME> case (H)' it was not in dispute that, prior to the commencement of the Constitution, Rule 10(1) of the Disciplinary Rules was a valid and effective provision in the case of a civil servant who was not a police officer of the subordinate ranks, and we held that the provision continued to be valid and effective after the Constitution came into force.

22. The case of a police officer of the subordinate ranks, such as the petitioner, stands upon a somewhat different footing; for Sub-section (4) of Section 266 of the Government of India Act provides that nothing in that section shall require <ORG> to be consulted in the case of the subordinate ranks of the various police forces in India as respects any of the matters mentioned in paragraphs (a), (b) and (c) of Sub-section (3) of that section. Paragraph (c) of Sub-section (3) is similar in terms of Sub-clause (c) of Article 320(3) of the Constitution. Rule 10(1) was therefore, so far as the case of the petitioner was concerned, redundant and it assumed importance only upon the coming into force of the Constitution, for the latter contains no provision cot-responding to Section 266(4) of the 1935 Act.

We do not think that the fact that the Rule was merely superfluous as regards the case of a particular class of government servants prior to the commencement of the Constitution makes it a Rule which is invalid as regards that class after the Constitution came into force. The position prior to the Constitution was that consultation with <ORG> was made unnecessary by Section 266(4) and by the Rule. The Constitution repealed the section but it did not in our opinion affect the validity of the rule; and it was not, therefore, in our view necessary for the Governor to consult <ORG> prior to the dismissal of the petitioner,

23. We hold therefore that this position fails. It is accordingly dismissed with costs, which we assess at two hundred and fifty rupees.