<NAME>, J.

1. I have had the advantage of reading the judgment of my learned brother and I entirely concur. I would, however, like to add a few words as to the meaning to be given to the words "error apparent on the face of the record". I conceive that in the English cases from which this expression has been borrowed the emphasis is not upon the word "error" but upon the words "apparent on the face of the record", that is to say that error must be such as can be ascertained from the record as it exists or should exist.

2. In 'Walsall Overseers v. <ORG>, 1878-4 AC 30 (A), Lord <NAME>, Lord Chancellor, stated, at_ page 39 :

"If there was upon the face of the order of <ORG> anything which shewed that that order was erroneous, <ORG> might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the <ORG> found error upon the face of it, to put an end to its existence by quashing it."

3. In 'Rex v. <ORG>', 1922-2 AC 128 (B), Lord <NAME> stated, at page 155 of the Report:

"The key of the question is the amount of material stated or to be stated on the record returned and brought into the superior <ORG>. If justices state more than they are bound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned, but there is no suggestion that, apart from questions of jurisdiction, a party may state further matters to the <ORG>, either by new affidavits or by producing anything that is not on or part of the record." Again, at page 159 of the Report, Lord <NAME> added :

"When the Summary Jurisdiction Act provided, as the sufficient record of all summary convictions, a common form, which did not include any statement of the evidence for the conviction, it did not stint, the jurisdiction of <ORG>, or alter the actual law of certiorari. What it did was to disarm its exercise. The effect was not to make that which had been error, error no longer but to remove nearly all opportunity for its detection. The face of the record "spoke" no longer; it was the inscrutable face of a sphinx."

The same point is clearly brought out in -- 'Rex v. Northumberland Compensation Appeal Tribunal', 1952-1 KB 338 (C), Lord Justice <NAME> states at page 349 of the Report:

"The record had to contain everything necessary to show that the Justices had jurisdiction to deal with the matter, and it had to set out their adjudication; but it was not necessary to set out either the evidence or the reasons. If a point of law arose, however, on which either party desired the ruling of <ORG>, he could ask the justices to make a speaking order, that is, to make a special entry upon the record of the reasons for their judgment. The justices were not bound to do this, but they usually did so if they entertained a doubt about the point. When their reasons thus appeared on the record, <ORG> would on certiorari inquire into their correctness, and, if the reasons were wrong, would quash the decision."

4. Their Lordships of <ORG> have held in -- " <CITATION> ', 1954 SC 440 (AIR V 41) (D), in a passage quoted at length by my learned brother that the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting writs in English law are applicable to India.

5. If any position as to the scope of certiorari other than that laid in the English decisions were adopted, it might well be that <ORG>, having discovered an error on the record, would be bound to allow that error to subsist because it was not one of sufficient gravity to justify interference. Such a position has been negatived by this Court in --' <CITATION> . at Allahabad', 1955 All 557 ((S) AIR V 42) (E), and by <ORG> in -- ' <CITATION> , 1955 SC 425 ( (SJ AIR V 42) (F), in passages which my learned brother has quoted and which it is not necessary for me to repeat.

6. In the present case, therefore, it is open to us to examine the order of the Chancellor which is a "speaking order" to consider the interpretation which he places on the statute & the reasons therefor which he gives and on finding that he misinterpreted the relevant provisions of the statute, to quash his order in the exercise of our power of certiorari.

Mehrotra, J.

7. This is an appeal under Chapter VIII. Rule 5 of the Rules of Court against a judgment of a Single Judge of this Court allowing a petition under Article 226 of the Constitution filed by the respondent, Dr. <NAME>.

8. Briefly, the facts, which gave rise to the petition, are that the respondent, Dr. <NAME>, was a Professor in <ORG>, appellant 2, and the Head of <ORG> until 13-3-1954, the date on which he retired from the service of the <ORG>. He was also a member of the Academic Council of the <ORG> and as such was an ex officio member of the <ORG> under head (vi) of Section 17 of the Allahabad <ORG> Act, 1921.

The <ORG> is the supreme governing body of the <ORG> under the Act and the executive body of the <ORG> is <ORG>. The constitution of <ORG> is laid down in the Statutes which are to be found in Chapter II of the Statutes, Ordinances and Regulations made under the Act. <ORG> consists of twenty members of whom six are members of the <ORG> elected by the <ORG> at its annual meeting. In the annual meeting of the <ORG> held in November 1952, the respondent was elected to <ORG>.

One of the limitations placed by the Statutes on the powers of the <ORG> to elect six of its members to <ORG> is that two of the persons so elected must be members who themselves were elected as members of the <ORG> by the registered graduates. Out of the six persons elected by the <ORG> to the membership of <ORG>, four were persons who had been elected to the <ORG> by the registered graduates but the respondent was not one of those four persons,

9. Under head (xviii) of Section 17 of the Act read with clause (2) of the first Statute relating to the <ORG>, the Chancellor of the University is empowered to appoint not more than 15 persons to be members of the <ORG> and by a letter dated 8-3-1954, the Chancellor, in the exercise of the powers so vested in him, appointed the respondent to be a member of the University <ORG> in place of Sri <NAME>. The express words in the letter of appointment which are relevant for the consideration of the petition are "With effect from the date of the former's retirement (that is, the retirement of the respondent) from the post of Professor and Head of <ORG> of <ORG>, viz. March 12, 1954, for the' residue of the term of office of Sri <NAME>, viz. up to December 14, 1955."

It is admitted by the parties that in this letter reference to March 12 is a mistake for March 13. The respondent admittedly retired from the <ORG> with effect from 13-3-1954 and consequently his nomination to the membership of the <ORG> com-menced with effect from his retirement and was to last till December, 14, 1955.

10. The question which arose before the University authorities was whether the respondent con-tinned to be a member of <ORG> alter 13-3-1954 in view of the provisions of the Statute, Clause (2) of the first Statute relating to <ORG> provides that the members of the <ORG> other than ex officio members shall hold office for a period of three years, but there is a proviso appended to this clause which reads as follows :

"Provided that a member appointed or elected as a member of a particular body or as the holder of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be."

The question having arisen as to whether the case of the respondent fell within the ambit of this proviso, the Vice-Chancellor referred the matter for decision to the Chancellor under the provisions of Section 42 of the Act. On 20-8-1954, the Chancellor, by an order pf that date, decided that the respondent was not entitled to, continue to be a member, of <ORG>. Thereupon a petition was filed in this Court under Article 226 of the Constitution for the issue of a writ of certiorari to quash that; decision and also for the issue of a writ of mandamus directing the appellants not to interfere with the attendance of the respondent at meetings of <ORG> and in the peformance of his functions as such member.

In the petition, the Registrar <ORG>, the <ORG> through the Vice-Chancellor, the Vice-Chancellor of the <ORG> as holding the office of Vice-chancellor and the Chancellor of the <ORG> were impleaded as opposite-parties. The petition was contested on behalf of all the opposite-parties and the learned Single Judge of this Court, by his order dated 29-10-1954, upheld the contentions raised by the petitioner-respondent and allowed the petition.

A writ of certiorari was issued quashing the order of the Chancellor dated 20-8-1954. The prayer for a writ of mandamus, however., was refused in the circumstances of the case.. The order of the learned Single Judge has, now been challenged in this appeal.

11. The first point to be considered is whether the Chancellor, acting under Section 42 of the Allahabad University Act, constituted a quasi-judicial tribunal and any decision by him under the said section was, therefore, subject to the superintendence of this Court or he was acting only administratively.

12. The question whether a power is judicial or quasi-judicial or it is merely administrative has to be decided upon the language of the Statute, upon the nature of the power and, the consequences of its exercise upon the rights of others and the exigencies of the situation. The main thing to be considered is whether the authority concerned has to decide a dispute between two parties or it has merely to take note of the dispute to inform its mind before it exercises the power conferred upon it in its discretion. In the former case it acts judicially or quasi-judicially but in the latter case it acts administratively.

The principle on which it can be determined whether an authority has acted judicially, quasi-judi-cially or administratively has been considered in the case of <CITATION> , 1950 SC 222 (AIR V 37) (G). In order to decide this question it is necessary to refer to the provisions of Section 42 of the Act which reads as follows:--

"If any question arises whether any person has bteen duly elected or appointed as, or is entitled to be, a member of any authority or other body of the <ORG>, the matter shall be referred to the Chancellor, whose decision thereon shall be final."

The Chancellor has not only to exercise his discretion but he has to take a decision thereon which necessarily implies that, in determining the dispute referred to him, he had to act judicially. The question, which can be referred to him under Section 42 , is also whether any person has been duly elected or appointed, which necessarily implies that the Chancellor has not to consider the question whether in his opinion a person has been elected or appointed but has to determine whether he has been duly elected, that is, in accordance with the provisions of the Statute. It has therefore, been rightly conceded by the Advocate General that the Chancellor constituted a tribunal the decision of which is subject to the superintendence of this <ORG> under Article 226 of the Constitution.

13. The point, which was strongly urged before the Single Judge, was that this Court had no authority under Article 226 of the Constitution to quash, by a writ of certiorari, an order made by a tribunal subject to the superintendence of this Court on the ground that it is, on the face of it, erroneous in law; the jurisdiction of this Court to interfere with orders passed by subordinate tribunals under Article 226 of the Constitution is limited to the cases where a tribunal has exceeded its jurisdiction or has acted against the principles of natural justice in the exercise of its limited jurisdiction; there is no power in this Court to exercise its jurisdiction under Article 226 of the Constitution in cases where the decision by a subordinate tribunal is erroneous in law on the face of the record.

In view of recent decisions of <ORG>, however, the learned Advocate General has conceded that it is open to this Court to quash the decision of an inferior tribunal if it is erroneous in law on the face of the record.

14. Article 226 of the Constitution is couched in very wide terms. It gives power to <ORG> to interfere, Under its supervisory jurisdiction, with the orders of inferior tribunals somewhat in the same manner as the court of <ORG> in England. Whatever restrictions there are, they have been placed by the courts themselves having regard to the fact that the Article gives a discretion to superior courts which is to be exercised OB well-known judicial principles.

The scope of <ORG> to interfere with decisions of inferior tribunals by issuing a writ of certiorari has now been finally determined by <ORG> in the case of <CITATION> , 1955 SC 233 ((S) AIR V 42) (H). Their Lordships, after considering all the Indian authorities as well as the authorities of <ORG>, have laid down that "It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record."

In this very case, their Lordships have approved of the principle laid down by the court of appeal in England in the case of 1952-1 All E R 122 (C). In an earlier case of 1954 SC 440 (AIR V 41) (D) it was observed by their Lordships as follows;

"In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."

It was also held by this Court in 1955 All 557 ((S) AIR V 42) (E) that "the power of this Court to issue a writ of certiorari is not confined to the grounds where the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record."

The main question, therefore, canvassed before us was that the order passed by the Chancellor could not be regarded as an error apparent on the face of the record. At the highest it could only be regarded as a mere error of law and even on the principle laid: down by their Lordships of <ORG> in <NAME>'s case (H), referred to above, it was not liable to be quashed by this Court As has been observed by their Lordships of <ORG> in <NAME>'s Case (H), the real difficulty is not in staring the principle but in its application to the facts of a particular' case. Their Lordships observed as follows:

"When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr. <NAME> for the first respondent contended on the strength of certain observations of <NAME>, C. J. in <CITATION> 1953 Bom 133 (AIR V 40) (I) that no error could b(c) said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another.

The fact is that what is an error apparent on the face of the record "cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

15. From this statement of law, it is clear that no exhaustive definition can be given to the words 'error apparent on the face of the record'. It will not entirely depend upon the nature of the error or upon the degree of the error. Each case will have to be determined on its own facts. A superior court or tribunal will have to examine an order itself and decide whether the order, in the circumstances of that particular case, can be regarded as erroneous on the face of the record or a mere error of law.

It was contended by the Advocate General that the words 'error apparent on the face of the record occur in Order 47 of the Code of Civil Procedure and it may be useful to refer to cases where the courts have determined the scope and ambit of the words 'error apparent on the face of the record' in Order 47, Rule 1 of the Code of Civil Procedure. In our opinion, it is not a safe guide to rely upon the cases interpreting the words 'error apparent on the face of the record' in Order 47, Rule 1, Civil P. C., in order to determine the scope of these words in connection with the power of: this <ORG> to issue a writ of certiorari under Article 226 of the Constitution.

When a court is asked to review its own order, it may not be a valid ground for the court to say that, as it finds on the reconsideration of its order that it is illegal, it should be set aside as it is an error apparent on the face of the record. It may be different where a superior tribunal is called upon to decide whether any erroneous decision of an inferior tribunal is illegal on the face of it.

It was then contended by the Advocate General that in cases where the inferior tribunal has, in the opinion of the superior tribunal, incorrectly interpreted any Statute, it will only be a mere mistake of law and cannot be regarded as an error apparent on the face of the record. We do not see that that is a test which can be applied in all cases and can be accepted as correct.

16. In '<NAME>'s case (H)', <ORG> quashed the decision of <ORG> on the ground that it had not properly interpreted the scope and ambit of Section 100 of the Representation o the People Act . The respondent before <ORG> in that case had been duly declared elected a member of the <ORG>. 301 votes, which were found in the ballot box of the respondent in that case, had been added to his votes.

If these 301 votes had been deducted from the total votes said to have been obtained by him, he could not have been declared elected and one of the questions, therefore, before <ORG> was whether those votes were proper votes and could be counted for the respondent. By mistake the ballot papers of <ORG> were issued to the electors of the <ORG> and the electors, when voting for the respondent in that case, had placed the ballot papers of <ORG> in his box.

The contention of the petitioner in that case was that they were invalid votes and could not be counted in favour of the respondent. <ORG> held that they were invalid votes and should have been rejected but, as, in their opinion, the addition of those votes did not materially affect the results of the election, the election could not be set aside. The <ORG>, in holding that the results-of the election were not materially affected by the addition of these votes, relied upon certain extraneous circumstances.

The <ORG> held that although those ballot papers were not valid in view of the provisions o Rule 47, the fact that they were found in the ballot box of the respondent indicated that the electors exercised their choice in favour of the respondent and consequently the result of the election was not materially affected. There were other circums-stances which were considered by the <ORG> in coming to that conclusion.

<ORG>, on the interpretation of Section 100 , Representation of the People Act held that it was, not permissible for the <ORG> to consider the intention of the electors in deciding whether the result of the election had been materially affected. It was observed at page 248 of the Report after referring to Rules 47 and 48 of the Rules framed under the Act that---

''Under this rule quite clearly no candidate can be declared elected on the strength of votes which are liable to be rejected under Rule 47. The expression "the result of the election" in Section 100(l)(c) must, unless there is something in the context compelling a different interpretation, be construed in the same sense as in S. 66 , and there it clearly means the result on the basis of the valid votes."

In my opinion, therefore, in that case it was nothing but an erroneous interpretation of the pro-visions of a Statute which was considered by <ORG> as 'an error apparent on the face of the record.' The determination of the questions as to what is the scope and the ambit of a particular provision of a Statute and what matters can legitimately be determined by a tribunal under the provisions of a particular Statute is nothing else but interpreting a Statute.

17. In the case of 1952-1 All ER 122 (C), which was approved by their Lordships of <ORG>, the facts were that the applicant in that case had been awarded compensation for loss o employment as clerk to a joint hospital board by <ORG> as compensating authority, and he had appealed against the award to the tribunal on the ground that the compensating authority had failed to take into account his service with the district council, as required by the regulations. The tribunal upheld the decision of the compensating authority.

The applicant moved <ORG> of <ORG> for an order of certiorari to remove the decision of the tribunal into <ORG> to be quashed on the ground that the decision was erroneous on the face thereof. In <ORG> both the tribunal and the compensating authority were respondents to the motion. They both admitted that their decisions were wrong and that an error of law appeared on the face of the decision of the tribunal but they contended that the court had no power to make an order of certiorari since the tribunal had not acted without jurisdiction.

In the circumstances of that case a writ of certiorari was issued by <ORG> and that decision was upheld by <ORG>. What was considered to be an error apparent on the face of the record was nothing but interpretation of certain regulations made by the compensating authority and the tribunal.

18. In the case of -- '<NAME> v. <ORG> and <NAME>; Ex Parte Road Haulage Executive', 1953-1 All ER 687 (J), this case was followed and a writ of certiorari was granted by <ORG>. In that case, the second respondent, George James <NAME> was awarded by the tribunal appointed by the Minister of Labour and <ORG> compensation for the loss of emoluments suffered by him when certain transport undertakings of which he was a servant, were acquired by the applicants, <ORG>, under the Transport Act , 1947. The amount of compensation was calculated in accordance with the provisions of the Transferred Undertakings (Compensation to Employees) Regulations, 1950, schedule II, para 5 (2), on the ground that the respondent had a right to the payment of compensation in the event of discharge within the meaning of para 4(1) (i) of the schedule.

It was admitted by the applicants in that case that the respondent had a right to claim damages for wrongful dismissal, but the contention was that such a right was not included in the phrase "compensation in the event of discharge." On that contention a motion was made for an order of certiorari to quash the award which was dismissed by <ORG>. On appeal, <ORG> allowed the appeal and the award of the <ORG> was quashed.

19. In Halsbury's Laws of England, Third Edition, Volume II, page 61, para 118, under the head -- Error on the lace of the proceedings --the law has been laid down that-

"Where upon the face: of the proceedings themselves it appears that the determination of the Iinferior tribunal is wrong in law, certiorari to quash will be granted .... Certiorari to quash will be granted where the charge laid before the magistrates, as stated in the information, does not constitute an offence punishable by the magistrates or where it does not amount in law to the offence of which the defendant is convicted or where an order is made which is unauthorised by the finding of the magistrates."

20. Mr. <NAME>,, on the other hand, contended that the words 'an error apparent on the face of the record' only means that if an error is revealed on the perusal of the judgment itself, it is nothing else but an error apparent on the face of the record. It is the duty of this <ORG> to finally determine the law of the land.

Having declared what the law is on which the decision of a particular controversy depends, it is for the superior court to examine the decision of an inferior tribunal and see if the said law has been correctly followed by the inferior tribunal. If it finds on the face of the order, which is, a speaking order, that it had not observed the law as determined by the superior tribunal inasmuch as it has held contrary to that law, it can quash the order of the inferior tribunal. In this connection reliance was placed on the following observations of this Court in the case of 1955 All 557 ((S) AIR V 42) (E) (at p. 560) :

"This decision, to our mind, clearly lays down that the power of this <ORG> to issue a writ of certiorari is not confined to the grounds where "the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record. The difficulty does arise in deciding whether a particular error of law is an error on the face of the record.

To our mind, if a certain order passed by the subordinate tribunal gives the reasons for the decision, that is to say, it is a speaking order as it is termed by English <ORG>s, then it is open to this <ORG>, in the exercise of its power under Article 226 of the Constitution, to scrutinise the reasoning of the subordinate <ORG> so far as can be done without going outside the order itself, examine it and if this <ORG> finds that the reasons are manifestly wrong on a question of law and the conclusions arrived at by the courts below are apparently erroneous then it is open to this <ORG> to exercise its jurisdiction under Article 226 of the Constitution and quash such a decision."

21. Reference in this connection may also be made to the following observations of their Lordships of <ORG> in the case of 1955 SC 425 ((S) AIR V 42) (F). That was a case where <ORG> was dealing with an order passed by <ORG>. One of the contentions raised at the bar was that <ORG> having been constituted for special purposes under the Act of Legislature, any decision arrived at by the said Tribunal should be considered as final and neither the High Court nor <ORG> should interfere with such an order in the exercise of its powers under Article 226 of the Constitution.

Reliance was also placed on' the express provisions of Section 105 of the Representation of the People Act. Dealing with that argument, the following observations were made by their Lordships of <ORG>:

"The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. <ORG> and <ORG> alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136 (of the Constitution)."

22. In order, therefore, to see whether the Chancellor has committed an error apparent on the face of the record, I have to consider the relevant provisions of the Statute and the reasonings given by the Chancellor for his decision.

23. The whole of the Statute which provides for the membership of <ORG> and of which the proviso is a part is as follows ;

"1. (1) ............

Class I -- Ex-Officio Members.

<NAME>.

Class II -- Other Members.

(i) Six members of the <ORG>, elected by the <ORG> at its annual meeting of whom two must be from among members of the <ORG> elected by the registered graduates;

(ii) (a) Two Principals, elected by the Principals of Colleges, and

(b) One member elected by the Wardens, the Chairman of the Delegacy and the Proctor from among themselves;

(iii) Two members elected by <ORG> from its own body;

(iv) Three members appointed by the Chancellor.

(2) Members other than ex-officio members shall hold office for a period of three years.

Provided that a member appointed or elected as a member of a particular body or as the holder' of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be."

Clause (2) of the Statute fixes the tenure of the membership of the members other than the ex-officio members. In the absence of any proviso, the result would have been that all those, who were elected as members of <ORG> by the <ORG> by virtue of their membership of the <ORG>, would have continued to be members of <ORG> for three years even though during that period they may have ceased to be members of that <ORG>. Similar results would have followed in the case of members under Clause (ii) of Class II.

The members, who would have been elected by the Principals of colleges, would have claimed membership for three years although during that period they may have ceased to be Principals and to hold that office. In order to avoid this result the proviso seems to have been enacted and on the interpretation of the plain language of the proviso, 'to our mind, it only means that any member elected as a member of <ORG> by virtue of his being a member of a particular body, that is, the <ORG>, he will hold office, that is, he will remain member of <ORG> so long only within that period as he continues to be a member of the <ORG>.

In other words, the condition for the continuance of office as a member of <ORG>, in the case of a member elected by the <ORG>, is his continuance as a member of the <ORG>. It is an admitted fact that on 13-3-1954, the respondent was a member of the <ORG> and also he continued to be a member of the <ORG> on 14-3-1954. It cannot, therefore, be said that at any point of time he ceased to be a member of the <ORG>. On the plain language of the proviso, therefore, he continued to be a member of the <ORG> and as such he did not cease to be a member of <ORG>.

24. The view taken by the Chancellor was that as he was a member of the <ORG> by virtue of his being a member of <ORG>, he belonged to the class of ex-officio members of the <ORG> and his capacity of membership was changed when he was nominated to be a member of the <ORG> by the Chancellor with effect from his retirement. It could not, therefore, be said that he continued to be a member of the <ORG>. In support of the view taken by the Chancellor, it was contended by the Advocate General that if the status of the member changed during his period of membership, e.g. an ex-officio member becomes a life member although his membership of the <ORG> continues without interruption, it is not in the eye of law the same membership and in the eye of law he cannot be regarded to continue to be a member within the meaning of the proviso.

In this connection it was also argued by the Advocate General that in properly construing the intention of the framers of this proviso, it was relevant to consider what could have been the intention of the electors when they elected the respondent to the membership of <ORG>. ....The members of the <ORG>, when they elected him to the membership of <ORG>, must have visualised that the respondent was a member of the <ORG> ex-officio by virtue of his membership of <ORG> and his membership was liable to cease as soon as he ceased to be a member of <ORG>., If the proviso is interpreted in a manner other than that suggested by the Chancellor, the result will be that the respondent will continue to be a member of <ORG> though that may never have been intended by the electors.

25. I do not think that there is any force in this contention of the Advocate General. In interpreting the intention of the framers of the Statute, the primary thing, which is to be considered, is the language of the Statute. The intention has to be deduced from the language. The words are to be given their plain meaning and if the words used by the framers of the Statute are plain in their meaning, it is not permissible to deduce the intention of the framers from considerations extraneous to the meaning of the words used" by the framers of the Statute.

It is not necessary to refer to authorities on this point. It is a well settled principle of interpretation of Statutes that the intent of an enactment has to be determined by the language of the Statute. It is not permissible for courts to travel beyond the language of the Statute and try to fish the intention of the framers from considerations which the courts regard reasonable. It would be really legislating and not interpreting.

Having regard to the plain language of the proviso 1 am of opinion that any person, who continues to be member of the <ORG>, will continue to be a member of <ORG> and a mere change in his capacity, that is, the qualification under which he becomes a member of the <ORG>, will not disentitle him to remain a member of <ORG>, it has been accepted by the Advocate General before us as well as before the learned Single Judge that the interpretation put by him on the proviso will necessarily involve the addition of certain words. The proviso has to be construed as if after the phrase 'a member of that body' there are deemed to be added the words 'in the same capacity as he was elected or appointed to it. It is a well-known rule of construction that in the absence of anything to modify or qualify, the words used in the Statute must be given their plain meaning and that it is not open; to add words to a Statute, it was observed by their Lordships of <ORG> in the case of --' <CITATION> , 1938 PC 281 (AIR V 25) (K) that "the <ORG> cannot put into an Act words which are not expressed and which cannot reasonably be implied on any recognised principle of construction." Nothing should be import-, eel into an enactment merely on the basis of a speculation as to the intention of the <ORG>.

26. The Chancellor has, however, tried to import the concept of capacity from the word 'continue'. In order to examine the reasoning of the Chancellor, it will be necessary to refer to a part of his order. Paragraph 9 of the order of the Chancellor reads as follows :

"The word 'continue' is defined in <ORG> as meaning, 'to carry on; 'keep up'; 'maintain'; 'persist in'; 'to remain in existence or in its present condition'; 'to last, endure or persist in being'; 'to remain (in a specified state or capacity)'. The word 'continue' carries with it the sense of a running nature of things under the same conditions, that is, without a break in capacity, time, sequence, tenure or essence.

While construing the words 'continue in office' Baron <NAME> in -- "<NAME> v. Mayor of Berwick-Upon Tweed', (1856) 5 HLC 856 (805) (L) said that to establish continuance the duties "prima facie must not be changed; its liabilities and checks must not be varied; not even its duration and tenure varied." Mere juxtaposition of two distinct periods of time without persistence of these essential attributes would not, therefore, be continuance."

The case referred to by the Chancellor was a case where the court was called upon to interpret certain words in a security bond and the words used therein were 'to continue in the said office'. In interpreting those words, it was observed that the words 'to continue in the said office' necessarily implied the continuance of the duties, liabilities and checks. In the present case, it has not been pointed out that any change has been brought about in the duties or liabilities or checks of the respondent as a member of the <ORG>. The qualification entitling him to become a member of the <ORG> may have changed but his duties and liabilities as a member of the <ORG> underwent no change.

Nothing has been pointed out in the Statute or in the Act which will go to show that the duties and the liabilities qua the membership of the <ORG> are different of the ex-officio members from that 'of the other members. Even the dictionary meaning quoted by the Chancellor, to our mind, makes no difference so far as the interpretation of the word 'continue' is concerned. Emphasis appears to have been laid by the Chancellor on the words 'in a specified state or capacity within brackets after the words 'to remain.' Even it is be accepted that the part within the brackets forms part of the meaning of the word 'continue', it cannot be said that the 'specified state or capacity' of the respondent 'changed. In our opinion, therefore, the plain meaning of the proviso is that so long as a member of <ORG>, who had been clected by the <ORG>, remains a member of the <ORG>, he continues to be member of <ORG>. There is nothing in the language of the proviso to justify the interpretation that the change of qualification will result in the extinction of his membership of <ORG>.

27. It was lastly contended by the Advocate General that there were various meanings given to the word 'continue' in dictionary and it was open to (he Chancellor to select any one of those mean-Ings and having selected that meaning and interpreted the proviso on the strength of that meaning, it cannot be said that the interpretation placed by the Chancellor is erroneous on the face of the record. I do not see that there is any substance in this contention.

A word may be given different meanings in a dictionary but what is the meaning which is to be given to that word in a Statute has to be determined in the light of the provision of the Statute in which that word has been used. It docs not give any power to the inferior tribunal to just arbitrarily select any meaning given to a word used in the Statute in dictionary but the superior court can examine whether the particular meaning given by the inferior court was the meaning which could be given to that word in that particular provision.

This Court has only to examine the" provisions of the Statute and the reasoning given by the Chancellor to come to the conclusion that the interpretation put by the Chancellor on the word 'continue' is erroneous on the face of it and cannot be accepted. The error committed, therefore, by the Chancellor, in my opinion, was an error apparent on the face of the record and his decision can be quashed by this Court in 'the exercise of its power under Article 226 of the Constitution.

28. Some argument was also addressed by Mr. <NAME> who appeared on behalf of the <ORG>. His contention 'was that as the Chancellor was an inferior tribunal created under the Statute for the specific purpose of determining the matters connected with the <ORG> and as finality has been given to his decision under Section 42 , it is not open to this Court to interfere with the decision of the Chancellor in the exercise of its writ jurisdiction.

In effect, his argument was that, although there is no limitation on the powers of tin's <ORG>, under Article 226 in the exercise of this power, this <ORG> 'will not interfere with the decisions of domestic tribunals. I do not see that there is any force in this contention. So far as the effect of the words 'decision thereon shall be final' occurring in Section 42 is concerned, we have already referred to the case of the Supreme <ORG> wherein the provisions' of Section 105 of the Representation of the People Act were considered end it was argued that as the decision of <ORG> under that section' was final, it was not amenable to the jurisdiction of the High <ORG> under Article 226 of the Constitution. That contention was precisely repelled by the Supreme <ORG>.

As regards the contention that this <ORG> will not interfere with the decision of a domestic tribunal in the exercise of its power under Article 226 of the Constitution, we are of opinion that when under some Statute creating a tribunal, the tribunal is called upon to act judicially, any decision by such tribunal can be interfered with by this <ORG> in appropriate cases and no general rule can be laid down that all decisions of such tribunals, which can be called domestic tribunals, cannot be interfered with'; by this <ORG>.

29. It was also contended by Mr. <NAME> that the final jurisdiction given to <ORG> and <ORG> to determine the law of the land does not apply to the cases where the law which is determined is a law which is liable to be changed by the domestic authorities and is not an enactment of any <ORG>. I do not think that any such distinction can be drawn. Any order passed by the Chancellor had the result of affecting the right of the respondent as a member of <ORG> and consequently such a determination was subject to the supervisory jurisdiction of this <ORG>.

30. Mr. <NAME>, who appeared for the respondent, further contended that the respondent was also nominated as a member of the <ORG> on behalf of <ORG>. As that nomination became effective before he retired from the University, on the strength of that nomination it was open to him to contend that he continued to be a member of the <ORG> within the meaning of the proviso. The learned Single Judge did not go into this question as he was going to allow the petition on the other point. As we are also agreeing with the view of the learned Single Judge, on the other question, it is not necessary for us to go into this question.

31. In the result, therefore, I would dismiss this appeal with costs.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2092 OF 2006 Commissioner of Income Tax ....Appellant Central, Kanpur Versus J.K. Charitable Trust ....Respondent Kamal Tower, Kanpur With CIVIL APPEAL NO. 1698 OF 2008 With CIVIL APPEAL NO. 1699 OF 2008 With CIVIL APPEAL NO. 2423 OF 2006 With CIVIL APPEAL NO. 682 OF 2007 1 JUDGMENT Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals in each case is to the order passed by a Division Bench of <ORG> answering the reference made by <ORG>, Allahabad Bench (in short the `<ORG>') under Section 256(1) of the Income Tax Act, 1961 (in short the `Act') in favour of the assessee and against the revenue. For answering the references in favour of the assessee <ORG> relied upon its judgment for two previous assessment years i.e. 1972-73 and 1973-74 in the assessee's case which is reported in <C<ORG>ION> (1992 (196) IIR 31). The present dispute relates to several assessment years, i.e. 1972-73 (in respect of an assessment re done under Section 147(1) of the Act) and assessment years 1975-76 to 1982-83.

2. Learned counsel for the revenue appellant submitted that each assessment year is a separate assessment unit and the factual scenario has to be seen. Dispute relates to the question whether the respondent, assessee's trust was hit by the provisions of Section 13(1)(c) and 13(2)(a)(f) & (h) of the Act and therefore cannot be given the benefit of exemption provided under Section 11 of the Act.

3. Learned counsel for the assessee submitted that for several years no appeal has been filed even though the factual position is the same i.e. for the assessment years 1983-84 upto assessment year 2007-08. Even no appeal was filed against the decision reported in [1992(196) ITR 31] (supra). It is also pointed out that several other <ORG> have taken a similar view and no appeal was preferred by the revenue against any of the judgments of the different <ORG>. Reference is made to the decisions reported in <CITATION> [(1982) 133 ITR 494], <CITATION> [(1983) 139 ITR 913], <CITATION> .2 [1988 (172) ITR 698] and <CITATION> [1996 (226) ITR 394]. The first two judgments have been rendered by the Bombay and Calcutta <ORG> respectively while the other two decisions are of the Gujarat <ORG>.

4. Learned counsel for the revenue submitted that even though appeal has not been preferred in respect of some assessment years, that does not create a bar for the revenue filing an appeal for other assessment years. Reliance is placed on a decision of this Court in <CITATION> [(2008)304 ITR 61 (SC)].

5. The factual scenario is undisputed that for a large number of assessment years no appeal has been filed.

6. The basic question therefore is whether the revenue can be precluded from filing an appeal even though in respect of some other years involving identical dispute no appeal is filed.

7. For deciding the issue a few decisions of this <ORG> need to be noted.

8. <CITATION> (2006 (3) SCC 1) it was noted as follows:

"The decisions cited have uniformly held that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar courts from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position. The reason why the courts have held parties to the opinion expressed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi-judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per incuriam. However, these are fetters only on a coordinate Bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a Bench of superior strength or in some cases to a Bench of superior jurisdiction.

A decision can be set aside in the same lis on a prayer for review or an application for recall or under Article 32 in the peculiar circumstances mentioned in <CITATION> (2002 (4) SCC 388). As we have said, overruling of a decision takes place in a subsequent lis where the precedential value of the decision is called in question. No one can dispute that in our judicial system it is open to a court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam. The decision in <CITATION> (2003(3) SCC 239) related to the year 1988. Admittedly, the present dispute relates to a subsequent period. Here a coordinate Bench has referred the matter to a larger Bench. This Bench being of superior strength, we can, if we so find, declare that the earlier decision does not represent the law. None of the decisions cited by <ORG> are authorities for the proposition that we cannot, in the circumstances of this case, do so. This preliminary objection of <ORG> is therefore rejected."

9. <CITATION> (1995(4) SCC 683) the position was highlighted by this court as follows:

"We are unable to appreciate the objection raised against the prosecution of this appeal by the appellant or other SLPs filed in similar matters. Sometimes, as it was stated on behalf of the <ORG>, the <ORG> Government may not choose to file appeals against certain judgments of <ORG> rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this <ORG> under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the <ORG>, not to file appeals before this <ORG> in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the <ORG> against judgments of <ORG>, such SLPs may not be entertained by this <ORG> in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the <ORG>. Therefore, the circumstance of the non-filing of the appeals by the <ORG> in some similar matters or the rejection of some SLPs in limine by this <ORG> in some other similar matters by itself, in our view, cannot be held as a bar against the <ORG> in filing an SLP or SLPs in other similar matters where it is considered on behalf of the <ORG> that non- filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the <ORG> or public interest."

10. <CITATION> [2004(1)SCC 347] reference was made to the judgments in Digambar's case (supra) and <CITATION> (1996(3) SCC 493). It was noted as follows:

"28. In the aforementioned situation, <ORG> of <ORG> manifestly erred in refusing to consider the contentions of the appellants on their own merit, particularly, when the question as regards difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in <CITATION> {(1991) Supp(1) SCC 138]. If the judgment of <NAME> case (supra) is to be followed, a finding of fact was required to be arrived at that they are similarly situated to the case of <NAME> (supra) which in turn would mean that they are also holders of diploma in Engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. ( <CITATION> )

29. <CITATION> (1996) 3 SCC

493) wherein this <ORG> noticed <NAME> case (supra) by holding: (SCC p. 494, para 4) "4. <NAME>, the learned counsel for the appellants, contended that though an appeal against the earlier order of <ORG> has not been filed, since larger public interest is involved in the interpretation given by <ORG> following its earlier judgment, the matter requires consideration by this <ORG>. We find force in this contention. In the similar circumstances, this <ORG> in <NAME>'s case (supra) and in <NAME> case (supra) had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the <ORG> is entitled to go into the question."

11. In <NAME>'s case (supra) reference was made to <NAME> case (supra) wherein it was observed at paragraph 5 as follows:

"It is then contended that Section 3(2) and (3) make distinction between the employees covered by those provisions and the employees of the aided schools taken over under Section 3(2) . Until the taking over by operation of Section 3(4) recommendation is complete, they do not become the employees of the <ORG> under Section 4 of the Act. The <ORG> in exercise of the power under Section 8 constituted a committee and directed to enquire and recommend the feasibility to take over the schools. On the recommendation made by them, the <ORG> have taken decision on 13-1-1981 by which date the respondents were not duly appointed as the employees of the taken over institution. Therefore, <ORG> cannot issue a mandamus directing the <ORG> to act in violation of law."

12. <CITATION> (2006(2)SCC

439) at paragraph 24 the position was reiterated.

13. <CITATION> [] it was observed that equity is not a relevant factor for the purpose of interpretation.

14. It will be relevant to note that in <CITATION> [(2000)243 ITR 143 ( <CITATION> [(2001) 249 ITR 219] this Court observed that without a just cause the <ORG> cannot file the appeal in one case while deciding not to file an appeal in another case. This position was also noted in <CITATION> [(2004)9 SCC 420].

15. In <NAME> case (supra) this Court held that where different <ORG> have taken different views and some of the <ORG> have decided in favour of the revenue, same is a just cause for the revenue to prefer an appeal.

16. If the assessee takes the stand that the <ORG> acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish malafides. As a matter of fact, as rightly contended by the learned counsel for the revenue, there may be certain cases where because of the small amount of revenue involved, no appeal is filed. Policy decisions have been taken not to prefer appeal where the revenue involved is below a certain amount. Similarly, where the effect of the decision is revenue neutral there may not be any need for preferring the appeal. All these certainly provide the foundation for making a departure.

17. In <NAME> case (supra) it was held that merely because in some cases revenue has not preferred an appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher court when divergent views are expressed by the different <ORG>. In this case, it is accepted by the learned counsel for the appellant-revenue that the fact situation in all the assessment years is same. According to him, if the fact situation changes then the revenue can certainly prefer an appeal notwithstanding the fact that for some years no appeal was preferred. This question is of academic interest in the present appeals as undisputedly the fact situation is the same.

18. The appeals are without merit and are accordingly dismissed. No costs.

........................................J. (Dr. ARIJIT PASAYAT) ........................................J. (C.K. THAKKER) ..........................................<NAME>) New Delhi;

November 7, 2008


JUDGMENT <NAME>, J.

1. This Rule raises a question of first impression and of considerable importance, namely, whether this <ORG> is competent to make an order for stay of proceedings in execution of its decree, in view of an application by the judgment-debtor to <ORG> for special leave to appeal to His Majesty in Council. The circumstances, under which the application has been made, are not disputed and may be briefly stated. The petitioners were defendants in a mortgage suit. The <ORG> of first instance dismissed the suit on the merit. On appeal to this <ORG>, that decree was reversed and the usual mortgage decree made on the 16th February 1911. The defendants applied to this <ORG> for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, on the ground that the decree did not involve a claim to a property of the value of Rs. 10,000 or upwards. The defendants applied to this <ORG> to review this order; that application was refused on the 16th April 1912. The position, therefore, is that in so far as the <ORG>s of this country are concerned, the mortgage decree has become final. On the 7th July 1912, the defendants, however, made the present application for a stay of proceedings in execution of our decree, for which the decree-holder had applied to the <ORG> below on the 2nd November 1911, during the pendency of the application in this <ORG> for leave to appeal to His Majesty in Council The present Rule was granted on the application of the 7th July 1912. The petitioners state in their affidavit that they have taken steps to apply to <ORG> for special leave to appeal to His Majesty in Council, and at the hearing before us, the learned <NAME> for the petitioners stated that the papers and costs have been transmitted to their Solicitors in England. The decree-holders opposed the application on the ground that as in appeal or application for leave to appeal is pending in this <ORG> or elsewhere, the <ORG> has no jurisdiction to grant a stay of proceedings. It is not disputed that there is no statutory provision applicable to this question; indeed, the absence of a provision in this behalf is not a matter for surprise, because the Code of Civil Procedure does not deal with applications for special leave to appeal to His Majesty in Council, though Section 112 of the Code of 1908 declares that nothing in the Code shall be deemed to bar the full and unqualified exercise of His Majesty's pleasure in receiving or rejecting appeals to His Majesty in Council. The question, therefore, arises whether this <ORG> is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the <ORG> has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the <ORG>. The existence of this inherent power to do justice has been recognized from the earliest times, <NAME> v. <NAME> 9 W.R. 402; B.L.R. Sup. Vol. 985 and has been repeatedly affirmed: <NAME> v. <NAME> 3 C.L.J. 29 and <CITATION> 3 O.L.J. 67; 33 0. 927. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised; it is exercised ex debito justitiae, to do that real and substantial justice for the administration of which alone the <ORG> exists. In other words, as Mr. Justice <NAME> puts it in <CITATION> 3 O.L.J. 67; 33 0. 927 the <ORG> in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the <ORG>. It is not necessary for my present purpose to formulate the circumstances under which a <ORG> will exercise its inherent power; various instances will be found mentioned in the judgments in <CITATION> 3 O.L.J. 67; 33 0. 927. Amongst obvious cases may be mentioned, consolidation of suits and appeals, postponement of the hearing of a suit pending the decision of a selected action, stay of cross-suits on the ground of convenience, inquiry as to whether all the proper parties are before the <ORG>, entertaining an application of a stranger to be made a party, the addition of a party, entertaining a defence in forma pauperis, deciding one question while reserving another for investigation, remanding a suit which has not been properly tried, staying the drawing up of the <ORG>'s own order, suspending the operation of the <ORG>'s order, staying proceedings pending an appeal in a guardianship matter and appointing a temporary guardian ad interim, applying the principle of res judicata to execution proceedings for the sake of finality, punishing contempt of <ORG> committed when the <ORG> is not sitting, deciding questions of jurisdiction though the <ORG> is ultimately found not to have jurisdiction over the suit, directing a party who has applied for leave to appeal to His Majesty in Council to pay costs on the dismissal of his application, amending decrees or orders, granting restitution in cases of reversal of execution sales and orders in execution proceedings, restraining by injunction a person from proceeding with a suit in the Small Cause <ORG>, staying proceedings pursuant to its own order in view of an intended appeal, and treating an application for revision as an appeal and vice versa: <CITATION> 25 C.757; 2 C.W.N. 529; <CITATION> 29 C. 644; <NAME> v. <NAME> 26 A. 358; (1904) A.W.N. 50; <NAME> v. <NAME> 2 A.L.J. 18. Let me examine the matter before us in the light of this principle. The decree-holders contend that the <ORG> is not competent to grant a stay, because no appeal or application for leave to appeal is pending here or elsewhere. This argument is based on the assumption that the <ORG> has authority to grant a stay, only when an appeal or an application for leave to appeal is pending. The assumption is groundless and is negatived by Order XLI, Rule 5(2), of the Code of 1908, which expressly recognises the position that an original <ORG> may, for a limited time, stay proceedings in execution of its own decree, in view of a possible appeal to a superior tribunal. The principle, thus recognised by the <ORG> in express terms, furnishes, in my opinion, a useful guidance in the determination of the question, how the inherent power of this <ORG> should be exercised in a matter of this description. That the <ORG> has inherent power to stay proceedings pursuant to its own order in view of an intended appeal, even though there is no express statutory provision in that behalf, is conclusively shown by the case of <ORG> v. <NAME> 5 O.W.N. 781. This is one aspect of the matter. Another point of view is of equal, if not greater, importance. <ORG> have laid down, in <CITATION> 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) that as soon as an appeal has been admitted by special leave of His Majesty in Council, the High <ORG> is vested with authority to stay execution, in the same manner as if leave to appeal had been granted by the High <ORG> itself. Consequently, if the proposed application by the petitioners for special leave to appeal to His Majesty in Council is granted by <ORG>, this <ORG> will be competent to stay proceedings under the authority of the decision just mentioned. The <ORG>, therefore, ought now to act in aid of a possible order for stay that may hereafter have to be made. If the contrary view is taken, what is the result? Assume that the present application for stay is refused, and the decree-holders are permitted to sell the mortgage properties; the application for special leave is granted by <ORG>, and an application then made to this <ORG> by the judgment-debtors for stay of proceedings. Are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous? I am strongly of opinion, after most anxious consideration of the subject, that the <ORG> should not tolerate such a result, and as I have shown, the position may be avoided by the recognition of sound judicial principles. The decree now under execution was made by this <ORG>, and the <ORG> has control over it, so as to enable the <ORG> to stay proceedings in view of a possible appeal to His Majesty in Council. It is fairly obvious that if the contention of the decree-holders were to prevail, the gravest injustice might be done to litigants. An application to <ORG> for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, inspite of the utmost expedition, in the preparation and transmission of papers. Besides, their Lordships of <ORG> do not hold their sittings continuously throughout the year, and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council; if, meanwhile, his properties are allowed to be sold up by the decree-holders on the theory that this <ORG> is powerless to interfere, not only may an application for stay after the grant of the special leave, as contemplated by <ORG> in <NAME> v. <NAME> 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) become infructuous, but the appeal admitted by special leave of their Lordships of <ORG> may turn out to be wholly illusory and ineffectual.

2. It cannot seriously be maintained that the grant of a stay in any way throws doubt on the decree or weakens its effect; the stay is granted on the principle that the parties should, if the circumstances justify the adoption of such a course, be retained in status quo till the validity of the decree has been tested in the Court of ultimate appeal.

3. The exercise of the inherent power of the <ORG> should thus be widened to aid the administration of justice and not unduly restricted so as to cause needless hardship to litigants and a possible failure of justice. I hold, therefore, that this <ORG> has authority to grant this application. The stay, however, can be granted only for a limited time, and on terms. The rule, in my opinion, should be made absolute and execution proceedings stayed till the 30th November 1912, and the <ORG> below directed to value the mortgage properties and the judgment-debtors called upon to furnish security for so much of the judgment debt as may exceed the value so determined; if security is not furnished within a time to be prescribed by the <ORG> below, the decree-holders will be entitled to proceed with execution of their decree.

4. The Rule is made absolute on these terms, under Clause 36 of the Letters Patent, but there will be no order for costs.

Holmwood, J.

5. I am not prepared to differ from my learned brother upon the general point he makes that this <ORG> has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the <ORG>. But there are numberless cases where the parties come to this <ORG> asking for a relief which it is not competent for them to seek, and the <ORG> does not in practice make use of its inherent powers to extend a procedure, which does not apply to a particular case, to such a case. For instance, the <ORG> does not ordinarily allow an application for revision to be treated as an appeal, far less does the <ORG> go outside its own walls to deal with parties who have no pending litigation before it.

6. To my mind, the use of the inherent power in this case would be an abuse of the process of the <ORG>.

7. Here is a case of a mortgage suit, valued at less than Rs. 10,000, which was dismissed in the Court of first instance but decreed on appeal to this Court on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, and the suit being of less value than Rs. 10,000 admittedly, it must be assumed that the <ORG>, dealing with <ORG> matters, held after full consideration that no substantial point of law arose in the case. The decree of the Court of the 16th February 1911 is, therefore, res judicata between the parties, and we cannot go into the merits of the case and say that this is a case where a stay of execution should be granted.

8. The parties are not properly before the <ORG> and I do not think they have any right to come before the <ORG>. Their only remedy is to go to <ORG> for special leave to appeal to His Majesty in Council. Until they do this, they have no footing whatever for further litigation in this matter.

9. There is no question of using our inherent powers to right a wrong or to prevent the abuse of the process of this Court. We are bound to hold that the decree of this Court of the 16th February 1911, which under the rules is obnoxious to appeal to <ORG>, is a good and just decree and one which ought to be executed.

10. That is the view I am prepared to hold, since, in my opinion, the applicants for special leave to <ORG> are not entitled to be heard to the contrary. They are barred by the principle of res judicata, and, speaking for myself, I am not prepared to hold that the decree of 16th February 1911 was not a good and just decree and was not final as far as this <ORG> is concerned. It is to my mind clear that it cannot be a proper use of the inherent powers of this <ORG> to impede the execution of the final decrees of this <ORG>, and I do not see why this <ORG> should not use its inherent powers to help the decree-holder who has obtained a good decree rather than help the judgment-debtor who has no locus standi to delay the course of justice.

11. I am strongly averse to staying execution, where the law does not expressly authorise it, except on very good grounds shown to the satisfaction of the <ORG>.

12. I have never been able to see why the interests of the decree-holder should not be just as worthy of consideration as those of the judgment-debtor, and I do not feel myself either called upon to interfere or justified in interfering with a perfectly competent, good and just proceeding in execution.

13. As the Rule is to be made absolute, I may say that the applicant to <ORG> has practically gained all he wanted, by this application, and I can see no objection to adjourning the matter to the 30th November, which is the practical effect of the order with the additional advantage to the decree-holder of the security ordered.


<NAME>, J.

1. Now that we have had the document of 27th August 1897 translated, I think that the appellants being the tangals are clearly entitled to the money which represents the share assigned to the mosque by <NAME>. By that document he gave the tangals power to collect his share of the estate of <NAME>. They would, I apprehend, have been entitled to demand from the Collector the whole of <NAME>'s share in the particular fund, and having collected it to keep a third for the mosque. In my opinion this is not a case to which the doctrine of must can be applied, assuming that the doctrine is in force in this Presidency. I would reverse the award and remand the case for disposal according to law. <ORG> will be abide the result.

<NAME>, <NAME>

2. In this case one <NAME> is said to have held a kanom (usufructuary mortgage) over certain land for Rs. 100. On his death his rights as kanomdar are said to have passed to hits widow, his half-sister and his father's brother's son's son, <NAME>, as sharers under <ORG>, This <NAME> assigned one-third of his share by a registered deed of gift to the seventh and eighth defendants in the suit. The land was taken up under the Land Acquisition Act , and the seventh and eighth defendants claimed a share of the compensation paid.

3. The Subordinate Judge disallowed their claim on the ground that the gift was invalid under <ORG>, because the property given was not put into possession of the donees, and also because what was given was an undefined share and therefore invalid according to <ORG> by reason of "musha" or confusion. The questions raised for our determination are--

(1) Whether the rules of Muhammadan Law are applicable to the case? and (2) If so, whether the gift is invalid according to that law?

4. I am of opinion that the Muhammadan Law as such and of its own force has no application, but the rule which would be applicable to such a case under Muhammadan Law may be applied by us if it is in accordance with justice, equity and good conscience to do so, This is clear from Section 16 of the Madras Civil Courts Act, 1873, which enacts as follows:

Where, in any suit or proceeding, it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution;

(a) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus; or

(b) Any custom (if such there be) having the force of law and governing the parties or the property concerned, shall form the rule of decision unless such law or custom has by legislative enactment been altered or abolished;

(c) In cases where no specific rule exists the <ORG> shall act according to justice, equity and good conscience.

5. The validity of the gift in this case is not "a question regarding succession, inheritance, marriage or caste, or any religious usage or institution," and therefore the rules of Muhammadan Law with regard to gifts are not necessarily the rules by which we should decide the question. This view is in accordance with that of <ORG> of the Allahabad High Court in <NAME> v. <NAME> All. 775 at p. 815. In construing the Bengal Civil Courts Act, 1871, the terms of which are similar to those of the Madras Civil Courts Act, it was there held that "the Court is not bound to administer the Muhammadan Law in claims of pre-emption, but on grounds of equity that law has always been administered as between them in claims for pre-emption."

6. Again in the Full Bench case of Sheikh <NAME> v. <NAME> 4 B.L.R. 134 at p. 169, Sir <NAME>, C.J., says at page 169, "The Muhammadan Law is not the Law of British India, It is only the law so far as the laws of India have directed it to be observed. ...We are bound by Regulation IV of 1793, except so far as that law has been modified by Regulation VII of 1832." He then refers to Section 15 of the former Regulation which is, for our present purposes, similar in terms to the Bengal Civil Courts Act, 1871, and to Section 16 of the Madras Civil Courts Act. So also in the case of <NAME> v. <NAME> 6 M.H.C.R. 26 at p. 31 <NAME>, Ag. C.J., says: "The Muhammadan Law binds Muhammadans no more than others except in the matters to which it is declared applicable. It is then law because of its reception as one of our law sources in the matters to which it applies. Where, however, not so received, it can only be prevailing law because consistent with equity and good conscience".... "The question, therefore, resolves itself into whether it is consistent with equity and good conscience to import an exceptional rule opposed to the principle of law administered here." He then examined the ground on which the rule of Muhammadan law as to pre-emption sought to be enforced in that case was founded, and concluded I am of opinion that it is manifestly opposed to both (equity and good conscience), and that no such obligation in this Presidency binds a Muhammadan or any one else."

7. It was suggested in argument that Section 129 of the Transfer of Property Act by implication makes the Muhammadan Law applicable, but this is not so. Section 129 merely enacts that "nothing in this chapter (as to gifts) shall be deemed to affect any rule of Muhammadan Law." that is, if there is any rule of Muhammadan Law which is administered as law by the <ORG>, it shall not be affected by anything in this chapter. It will continue to be administered as law by the <ORG> just as if this chapter was not enacted. In considering this section of the Transfer of Property Act and also in considering the case law of other parts of India it is necessary to bear in mind that in the Civil <ORG> Acts of many Provinces the Muhammadan Law of gifts is specifically declared to be applicable in those Provinces as between Muhammadans (e.g., <ORG>, Section 5 , Act XX of 1875; Punjab, Section 5 , Act XII of 1878; Oudh, Section 3 , Act XVIII of 1876). In those Provinces the Muhammadan Law as to gifts applies by virtue of the Civil <ORG> Acts and is not affected by the rules of the Transfer of Property Act as to gifts. In other parts of India rules of Muhammadan Law, though not made applicable by legislation, have been adopted by the <ORG> as in accordance with equity and good conscience and have been consistently enforced, as such, between Muhammadans. Some of the rules of the Muhammadan law of pre-emption have, in this way, been adopted in Bengal and in the North West Provinces, though not in Madras. Such rules would apparently be unaffected by the Transfer of Property Act so long as the <ORG> continued to enforce them as being in accordance with equity and good conscience.

8. Turning now to the facts of the present case, I am of opinion that the gift is not invalid for either of the reasons assigned by the Subordinate Judge. The rule of <NAME> with regard to "musha" is defined by <ORG> as the rule "that a gift of an undivided share in a subject capable of division is not good because it would lead to confusion." We have not been referred to, nor am I aware of any case in which this Court has held that the rule as laid down in <NAME> is applicable in this Presidency. In the case of <NAME> v. Shaik Mira I.L.R. 13 Mad. 46, a father having a share in a house gave to his daughter a moiety of the share to which he was entitled. Objection was taken to the validity of the gift because of confusion or musha, but the Court held that the gift was not void for indefiniteness. I can see no reason why the present gift should be regarded as more indefinite or more likely to lead to confusion than the gift in that case. In <ORG> case already referred to <NAME> v. Hosseini Bibi L.R. 15 I.A. 81; I.L.R. 15 Calc. 684, at p. 701 their Lordships referring to the doctrine of musha observed that by <NAME> one of two sharers might give his share to the other and add "supposing there are three sharers what is there to prevent one of the three giving his share to either of the other two? Mr. <NAME> was asked what confusion that would introduce. Mr. <NAME> took refuge in the doctrine itself which he said was a very refined doctrine. To extend it to this case would be a refinement on a refinement amounting, in their Lordships' opinion, almost to a reductio ad absurdum" (page 701). The fact seems to be that the doctrine of musha is a vague and shadowy one. There is nothing to show that it has been adopted by the <ORG> in this Presidency, nor is there any reason in equity and good conscience why we should hold that the present gift is invalid because of indefiniteness.

9. With regard to the objection that possession was not given to the donees, I observe that the Muhammadan Law adopted by our Courts does not; require immediate possession to be given in all cases, and it may be doubted whether even the restricted rule as to possession is any longer adapted to modern requirements and whether the mode of transfer laid down as obligatory on Europeans and Hindus by Section 123 of the Transfer of Property Act and adopted by the parties in this case, viz., by registered instrument attested by two witnesses and signed by the donor, ought not in equity and good conscience to be held to be as efficacious as delivery of possession in the case of Muhammadans. The certainty, publicity and formality which attend delivery of possession, are at least as well secured by a registered and attested instrument, and no case has been quoted in which a transfer evidenced in this way has been held to be invalid in this Presidency for want of delivery of possession.

10. In the case of <CITATION> 5 M.H.C.R. 114 the document was apparently not registered and the donor continued to take the profits of the land until her death. How-over that may be, in the case of <NAME> v. Hosseini Bibi L.R. 15 I.A. 81 : I.L.R. 15 Calc. 684 already referred to, <ORG> held that it was not necessary for the donor to give immediate possession to the <ORG>; and that where the instrument entitles the donee to take possession and the donor has done all in his power to perfect the contemplated gift, no objection can be taken to the gift on the score of want of possession by the donor or because possession was not given to the donee at the time. In this case exhibit I gives the <ORG> authority to realize the property "from tenants and others who are in possession" by means of suits or by negotiation. The gift, therefore, cannot be regarded as invalid for want of possession in the donor or <ORG> at the time of transfer.

11. I would therefore set aside the award of the Subordinate Judge and remand the petition for disposal according to law.