JUDGMENT

1. The question in this appeal is whether 'an application under Order 21, Rule 95 for delivery of property by a decree-holder who has purchased the property in execution of his own decree is a step-in-aid of execution within the meaning of the expression in Article 182 , Clause 5 of the third column of the Limitation Act . The argument of Mr. <NAME> for the appellant may be summarised under the following heads:

1. <CITATION> . (1900) ILR 24 Mad 185, which is a case in point, is opposed to the decisions before and after it.

2. The expression " purchaser at a sale in execution of a decree " in Article 138 of the Limitation Act is equally applicable to a decree-holder who purchases property in execution of his own decree as well as to a person who is a stranger to the decree, and therefore the former should be held to occupy the same position as the latter in regard to applications made after the <ORG> sale.

3. When the judgment-debtor's property is purchased in <ORG> sale by the judgment-creditor the decree is wholly or partially satisfied and thereafter there is no decree to be executed to the extent of the value of the property sold.

4. An application by a decree-holder can be a step-in-aid of execution only when an execution application is actually pending. Such an application cannot be said to be pending when a decree has been satisfied by the decree-holder purchasing the property of the judgment-debtor in <ORG> sale.

2. <CITATION> (1900) ILR 24 Mad 185 it was held that an application by the decree-holder for delivery of the lands purchased by him in execution of his decree was a step-in-aid of execution as the execution was not complete so long as the purchaser had not secured possession! This case is directly in point and the authority of this case has not been challenged for quarter of a century. It would not be right to question the correctness of a decision, which has been accepted as laying down the law correctly for a number of years. The <ORG> should follow the principle of Stare decisis in deciding points already decided by the <ORG>. A decision of a Bench on a point of law should be held to be good till <ORG> upsets it or takes a view opposed to it or <ORG> of the High <ORG> overrules it. As the authority of <CITATION> (1900) I L R 34 Mad 185 is said to be opposed to the decisions preceding it and the decisions subsequent to it, we proceed to consider whether it is so or not.

3. It is urged that the decisions in <NAME> v. <NAME> (1871) 6 MHCR 304 and C.M.A. No. 122 of 1895 are against the view of this. <ORG> in <CITATION> (1900) ILR 24 Mad 185. In <NAME> v. <NAME> (1871) 6MHCR 304 the facts were: The defendant became the purchaser of the property sold in execution of a decree and the price for which the sale took place was sufficient to satisfy the decree. Instead of paying the purchase money into <ORG> the defendant retained the whole sum with the assent and knowledge of the plaintiff upon the understanding that he should give a receipt to the <ORG> for himself and on behalf of the plaintiff and afterwards should pay to the plaintiff his portion of the amount decreed. The defendant presented a petition to that effect to the <ORG> and obtained the necessary certificates confirming the sale. The defendant having failed to pay the amount to the judgment-creditor which he was entitled, the latter brought a suit for the amount. It was contended that Section 11 of Act XXIII of 1861 corresponding to Section 47 of the present Code was a bar to the suit. The learned Judges held that the plaintiff's suit was not barred. There is no doubt an observation of the learned Judges that the execution proceedings were completely at an end and no subsequent application under the decree could have been entertained by the <ORG> which executed it. But the observation of the learned Judges should be considered in connection with the facts of the case. It is not proper to rely upon one or two sentences in a judgment without reference to the facts of the case. In that case the decree-holder consented to take the amount of the decree from the auction-purchaser and allowed satisfaction of the decree to be entered up. The auction-purchaser not having paid the money he had to bring a, suit. The decree having been satisfied there was no decree to be executed. It would be the same thing if a decree-holder instead of executing the decree takes a fresh document from the judgment-debtor in satisfaction of the decree; and in such a case if the judgment-debtor fails to pay the amount under the document can the decree-holder execute the decree in satisfaction of which he took the document? It is an arrangement subsequent to the passing of the decree between the judgment-creditor and the judgment-debtor whereby the decree is satisfied, and if the subsequent agreement is not acted up to, the only remedy is to enforce the agreement. <NAME> v. <NAME> (1871) 6 MHCR 304, therefore, is not an authority for the contention that the decree-holder's application in this case is not a step-in-aid of execution, nor is it against the view of the learned Judges in <CITATION> (1900) ILR 24 Mad 185. In C.M.A. No. 122 of 1895, <NAME>, J. sitting as a single Judge followed the decision in <NAME> v. <NAME> (1871) 6MHCR 304. But the facts of the case were not the same as those in <CITATION> (1900) ILR 24 Mad 185. In C.M.A. No. 122 of 1895 the facts were as follows: The 2nd defendant in the case objected to the delivery of possession on the ground that the purchaser got possession of the lands sold to him and that the <ORG> should ascertain the price and position of the plots sold and direct delivery of possession. <NAME>, J. held that such an application did not lie inasmuch as there had been a sale and the decree-holder was put in possession, and in the circumstances the execution came to an end because the sale itself was not questioned. It is difficult to see how this decision has any bearing on the question in <CITATION> (1900) ILR 24 Mad 185. It may be noted in passing that <NAME>, J., who decided C.M.A. No. 122 of 1895 was one of the Judges who decided <CITATION> (1900) ILR 24 Mad 185. <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 is strongly relied upon as supporting the appellant's contention. In that case the judgment-debtor had made an application to the <ORG> for entering up satisfaction. The decree-holder had objected to satisfaction of the decree being entered and filed a statement called counter-statement denying the receipt of the decree amount and asking that the petition should be dismissed. It was contended that the counter-statement was a step-in-aid of execution. <NAME> and <NAME>, JJ. held that the statement was not a step-in-aid of execution. The observation of <NAME>, J., who delivered the judgment of the <ORG>, that an application to be a step-in-aid of execution should be made in a pending execution application is strongly relied on, <NAME>, J. differs from the observation of <NAME>, J. in <CITATION> (1921) ILR 45 Mad 202 : 41 MLJ 374. With very great respect we are unable to agree with the view of <NAME>, J. that an application in order to be a step-in-aid of execution should be made in a pending execution application. We shall deal with this point specifically under the fourth head. The facts of the case in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 are distinguishable from the present. In that case the so-called counter-statement was not an application to have the decree executed or to enable the <ORG> to do anything which would further the execution of the decree. As we have observed, the observations in a judgment should be considered in connection with the facts of the case. <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 is considered as an authority in favour of the appellant, we should respectfully dissent from it. But we hold that this is not an authority on the point now in question. <CITATION> (1924) 48 MLJ 506, to which one of us was a party, is also relied upon. In that case the mortgagee decree-holder applied for the payment out of a sum of money in <ORG> which was not realised in execution of the decree. It "was held that that application was not a step-in-aid of execution. The observation at page 509 that where an act of the plaintiff is not in furtherance of execution or in a pending execution it cannot be said to be a step-in-aid of execution does not help the appellant. It is clearly stated that the act must either be in furtherance of execution or in a pending execution and the passage cannot be twisted to mean that the application should be in a pending execution application. That case therefore is not against the decision in <CITATION> (1900) ILR 24 Mad 185. The decision in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303 was followed by another Bench of this <ORG> in C.M. Section A. No. 120 of 1923 Since reported in <CITATION> (1926) 51 MLJ 480. The facts in that case were very similar to the facts in <CITATION> (1921) ILR 45 Mad 466 : 42 MLJ 303. There also the judgment-debtor applied to the <ORG> to have satisfaction of the decree entered and the decree-holder put in a statement objecting to the satisfaction being entered. The <ORG> held that the filing of such statement was not a step-in-aid of execution. The learned Judges, <NAME> and <NAME>, JJ., negatived the contention that an application in order to be a step-in-aid of execution should be made in a pending execution application. It is clear from the above discussion that there is no case so far as this High <ORG> is concerned which is against <CITATION> (1900) ILR 24 Mad 185 or which questions its correctness.

4. The argument that the expression "purchaser at a sale in execution of a decree " in Article 138 covers the case of a judgment-creditor who purchases the property in execution of his own decree is untenable. It is well settled that a decree holder who purchases property in execution of his own decree cannot bring a suit for possession of the property purchased by him. Article 138 of the Limitation Act must be read along with the provisions of the Civil Procedure Code. Section 47 of the Civil Procedure Code bars a suit by a decree-holder for possession of the property purchased by him in execution of his own decree. <NAME> v. <NAME> (1902) ILR 26 MAD 740 : 13 MLJ 474, <NAME> v. Hussain Sahib (1904) I L R 28 Mad 87 : 14 M L J 474 and <NAME> v. <NAME> (1890) ILR 13 Mad 504. To hold that an application like the present is not an application in execution of a decree would be tantamount to holding that the above decisions are incorrect for it has been consistently held that when the decree-holder applies for delivery of possession of the property purchased by him the <ORG> should consider the objection and an appeal lies under Section 47 against the order made by the executing <ORG>, and there is no warrant either in principle or in authority to hold a different view.

5. The contention that there is nothing to be executed after the decree-holder purchases the property in execution of the decree is denying the decree-holder a right to which he is entitled. The mere fact that he purchases the property of the judgment-debtor is not pro tanto a satisfaction of his decree. He is allowed to give credit for the value of the property purchased by him, but that alone would not be sufficient to satisfy the decree. Till he obtains possession it cannot be said that his decree is satisfied to the extent of the value of the property purchased. He has to apply to the <ORG> for delivery of possession. The contention that the moment he buys the property of the judgment-debtor he ceases to be the decree-holder and assumes the capacity of a stranger purchaser is not supported by any authority. When the law prescribes a certain course to be pursued by the decree-holder even when he becomes the purchaser of the property it is not open to rely upon the expression used in Article 138 of the Limitation Act and to hold that his capacity as decree-holder ceases the moment he becomes the purchaser in <ORG> sale. We hold that the execution is not complete till the decree-holder obtains possession of the property purchased by him in execution of his decree.

6. An act or an application in order to be a step-in-aid of execution need not be in a pending execution application. This point was decided so far back as <CITATION> (1882) I L R 5 Mad 141 and it is too late in the day to question the principle of that decision. In that case the judgment-creditor applied to the Court which passed the decree for a certificate that a copy of <ORG> was necessary to enable him to obtain such copy from the Collector's Office and thereupon to execute the decree by attaching the land. It was held that that application was a step-in-aid of execution. <NAME>, J., observed at page 143--

I agree with the observations in <CITATION> (1877) I L R 3 Cal 235 (FB) that any application in furtherance of an application to put a decree into execution may be held to be an application to enforce the decree.

7. <NAME>, J., concurred in the view. This case was followed in <CITATION> (1913) I L R 38 Mad 695 : 26 M L J 433. <CITATION> (1921) ILR 45 Mad 202 : 41 MLJ 374 Ramesam, J., observed:

In my opinion there is no warrant for the view that an application to take a step-in-aid of execution should be made in execution.

8. We entirely agree with the observation of <NAME>, J.

9. When the decisions of our own <ORG> are almost unanimous as regards a certain point it is unnecessary to consider what the Views of the other <ORG>s are on that point. We may, however, remark that the views of the Bombay and Calcutta <ORG>s are in accordance with our view. In Sadashiv bin <CITATION> (1913) I L R 38 Mad 695 : 26 M L J 433 the point before us was specifically decided and in <CITATION> (1926) 43 C L J 34.5 (FB) a Full Bench of the Calcutta <ORG> held the same view as that in <CITATION> (1900) ILR 24 Mad 185. There are conflicting views in the decisions of the Allahabad <ORG>. The Patna <ORG> no doubt takes a different view.

10. On a careful consideration of the cases on the point we have no hesitation in answering the question in the affirmative. The appeal fails and is dismissed with costs.


JUDGMENT <NAME>, J.

1. This reference arises out of the estate duty proceedings consequent on the death of one S. M. M. Muthukaruppan Chettiar on October 19, 1961. He was a partner in a firm of money-lenders in Malaya called "<ORG>". He made gifts during his lifetime as follows:

Date of original gift Amount out of the gifted property included u/s. 10 Name of donee Relationship Date of deed evidencing thetransaction     6-4-1938 Malayan Dollars 2,059 <NAME> Married daughter 7-4-1955 12-4-1950 7,405 <NAME>.

7-4-1955 13-4-1954 3,000 S. M. M. Dharma Kanakku (Trust Account) Charity 29-3-1955 10-6-1954 15,000 Krishnan Grandson 7-4-1955

-do.

15,000 <ORG> do.

do.

do.

15,000 Venkatachalam do.

do.

do.

15,000 <ORG> do.

do.

6-2-1939 17,587 S. M. M. Subramanian Chettiar Son 7-4-1955 10-6-1954 6,250 96,301

2. It is not clear as to when the deceased <NAME> became a partner in <ORG>. From the table given above it would be seen that one of the gifts is on April 6, 1938, another on February 6, 1939, a third one on April 12, 1950, and a fourth one on April 13, 1954. The firm was reconstituted with effect from 10th June, 1954. On that date his son joined the firm as a partner. Prior to the son joining the firm the deceased had 12 1/2% share in the firm. As a result of the son joining the firm, his share was reduced to 6 1/4 per cent, and the son got 6 1/4 per cent, in the firm. On that day four sums of 15,000 Malayan dollars were gifted to the four grandsons, as mentioned above, and another sum of 6,250 dollars was gifted to his son, who became a partner.

3. With reference to <NAME>, who is the married daughter, and the gift in whose favour is referred to as item No. 1 in the above table, the position was as follows :

On 17th December, 1937, a house was purchased in No. 33, Jalan Deva Road, Sungaipattani, Malaya, for $ 4,941. The relevant consideration was debited to her account in the books of <ORG>, Sungaipattani, Malaya. She received as gift on 6th April, 1938, a sum of 7,000 dollars as a result of which her account stood with a credit balance of $ 2,059. It is this amount which has been included in the assessment. It may be mentioned here that on 7th April, 1955, the deceased executed a deed of declaration saying that he gifted to her on several dates certain sums which had accumulated to $ 21,971.94 with interest, etc., and that she and her heirs were the absolute and free owners of the said sums. The deceased declared that he had no interest whatsoever in the said sum. All the other transactions fall into the same pattern, i.e., entries in books followed by the deed evidencing the transactions as shown in column (5) above.

4. To the gifted amounts, as lying in deposit with the aforesaid firm, were added interest and other receipts from time to time and there were also drawings for various purposes by the respective donees. We are concerned here with the gifted amounts totalling $ 96,301.

5. On the above facts, the Assistant Controller of Estate Duty considered the applicability of Section 10 of the Estate Duty Act. He took a sum of $ 1,03,708 as the amount with respect to which Section 10 was considered applicable. After referring to the gifts, he held that the donees invested the monies either wholly or in part in the firm of Messrs. <NAME>, Sungaipattani, Malaya, in which the deceased was a partner till his death so that the investments by the donees, to the extent they had originated from the gifts referred to above, fell within the mischief of Section 10 of the Estate Duty Act. He referred in this connection to the decision of <ORG> in <NAME> v. Commissioner of Stamp Duties,  AC 435 ;  37 ITR (ED) 89 ; 3 EDC 915 (PC).

6. The Appellate Controller reduced the addition to $ 96,301 as set out in the table given earlier here. He confirmed the applicability of Section 10 to the extent of the said amount. On further appeal, <ORG> held as follows :

"...... by reason of the donor being a partner in the firm in which the amounts gifted by him to the donees are deposited or invested, it cannot be said that the possession and enjoyment of the property taken under gift was not retained to the entire exclusion of the donor ...... the enjoyment contemplated under Section 10 of the Estate Duty Act, 1953, is enjoyment of the rights of the donees, and the enjoyment of the money after it was deposited is different from the enjoyment by the firm of the rights of the donees. As far as the donees are concerned, they did not share any of their right--right to income, right to assign, right to pledge--with the deceased partner of the firm. Moreover, a partner in the firm cannot be said to be the owner of any specific share in any partnership property and in that view he can neither transfer nor be the transferee of such specific share in the property. The deceased had no right or interest in and, therefore, could not be said to have enjoyed the deposit made by the donees in a firm in which he was a partner."

7. In coming to this conclusion it cited several decisions and observed that the matter had been dealt with by them in another order dated 31st October, 1967. The <ORG> deleted the said sum of $ 96,301 from the assessment on the ground that Section 10 did not apply.

8. On the above facts, at the instance of the Controller of Estate Duty, the following question of law has been referred :

"Whether, on the facts and in the circumstances of the case, the <ORG> was right in law in holding that the gifted property of $ 96,301 was not hit by the provisions of Section 10 of the Estate Duty Act, 1953 ?"

9. On behalf of the Controller, Mr. <NAME>, learned counsel, submitted that in cases where Section 10 of the Estate Duty Act has to be applied, one has to first ascertain the subject-matter of the gift and find out whether the donor has been entirely excluded. In his submission, this is a case where there was a current account in favour of the deceased in the books of <ORG> which had been debited and that the donees were operating the said account. He referred to the finding of the <ORG> that the gifts were not" conditioned upon the retention of the moneys of the firm", that there was no documentary evidence to show the transfer of any actionable claim and that, in the absence of any such documentary evidence, it would only be a case of cash gift. His attempt was to show that where there was no transfer of an actionable claim as such in the manner contemplated by Section 130 of the Transfer of Property Act, and that the gift was only of cash, and that the subsequent investment of the amounts in the firm in which the deceased was a partner, brought the case within the scope of Section 10 of the Estate Duty Act.

10. For the taxpayer it was pointed out that there was no current account, that this was a case of a transfer of an actionable claim and that for the purpose of finding out whether there was any evidence in writing at the time of the transfer, the matter might, if necessary, be sent back to the <ORG>. The learned counsel also attempted to show that the documents of 7th April, 1975, referred to already, were sufficient to support the case of a transfer of an actionable claim.

11. The document dated 7th April, 1955, is not contemporaneous with any of the transactions set out in the table given already. The declaration is long after the event and was obviously intended for some other purpose. We are, therefore, unable to proceed on the basis that the declarations of 7th April, 1955, in all cases except one, in any way affected the present position. We may, however, mention that the one document, namely, the one dated 29th March, 1955, in the case of a trust account is item No. 3 in the table. With reference to this trust, there was declaration made on 29th March, 1955. Even that declaration related to what happened earlier on 27th July, 1954, and that was by setting apart monies for performance of several charities. Thus, with reference to none of the transactions, is there any contemporaneous document in writing as contemplated by Section 130 of the Transfer of Property Act, to which any reference has been made before us. As the matter has been examined by the estate duty authorities and the <ORG> at a time when they did not have the benefit of several decisions which were rendered subsequently, it is necessary to refer to the decisions so as to find out whether the property gifted was retained by the donee to the entire exclusion of the donor, which is the only point in dispute here.

12. The law on this point has been laid down by <ORG> in two decisions which were appeals from this court and where the decisions of this court were confirmed. <CITATION> ,  73 ITR 166, 169 (Mad.) the facts were as follows :

One <NAME> was a partner of a firm called "<ORG>" at Coimbatore. He asked the firm on 30th March, 1953, to transfer from his loan account with it a sum of Rs. 1,00,000 to the credit of each of his five sons in equal shares of Rs. 20,000 by opening separate accounts in their individual names in the firm's books. The assessability of this sum of Rs. 1,00,000 under Section 10 of the Estate Duty Act was the subject of dispute which reached this court. He had, in August 1953, transferred an immovable property to his two sons. The assessability of the value of that property was also the subject of dispute, but that is not relevant for our present purpose. With regard to the sum of Rs. 1,00,000 this court observed :

"The donor had lent moneys to the firm and from out of the credit in his favour with the firm, he directed it in writing signed by him to transfer a sum of Rs. 20,000 to each of his sons by way of a gift."

13. After pointing out that this was an actionable claim and that the donor had directed the firm in effect to transfer part of his actionable claim in favour of his sons, and that the requirements of Section 130 of the Transfer of Property Act had been complied with, it was held :

"Once we hold, as we do, that the subject-matter of the gift was not the sum of Rs. 1 lakh as money but an actionable claim of that value, it follows that the donor was completely excluded from it."

14. This decision was confirmed by <ORG> on appeal in <CITATION> main discussion in <ORG>'s judgment is with reference to the property that was transferred by the deceased in favour of his two sons under the document of August, 1953, and the same conclusion was applied with reference to the aforesaid amount of Rs. 1,00,000.

15. The other decision of this court is reported in <CITATION> , . In that case the deceased was the partner of a firm of money-lenders. He transferred by book adjustment in the accounts of the firm two sums totaling Rs. 1,29,924 to his sons and daughter apparently out of the profits earned and lying to his credit in the firm. With reference to the assessability of this sum under Section 10 of the Act, this court observed:

"As the funds belonged to the donor, who was a partner, their repayment would be subject to the provisions of the partnership law. It is in this background we have to view what precisely was the subject-matter of the gift; was it, the two sums, free of any conditions or liabilities or subject to them ? We are inclined to think that, on a consideration of the entire facts, the book entries of the two amounts were made in effecting the transfer, the donor being fully alive to the fact that there would be no handing over of those two sums in cash to the donees and they would be available for the continued use of the partnership in the business and in that contingency, therefore, the amounts, while being used in the firm, would be looked after, managed and controlled by the father in his capacity as the managing partner."

16. The decisions of <ORG> in <NAME> v. Commissioner of Stamp Duties and <NAME> v. Commissioner of Stamp Duties, [1934] AC 61; 2 EDC 462 (PC) were discussed and it was found that the case before this court came within the scope of the principle in <NAME>'s case. This decision was taken on appeal to <ORG> and the decision of <ORG> is reported in [1973] 91 I.T.R. 1 ( <CITATION> ). <ORG> held that the question of law was completely covered by the decision in the case of <NAME>.

17. We may refer to two other cases to which one of us was a party. <CITATION> ,  86 ITR 533 (Mad) the deceased, who was a partner in a firm carrying on business as bankers, transferred a sum of Rs. 1,00,000 each to the three minor grandsons of his deceased brother. In each case he drew a cheque against his account with the firm. The cheque was in favour of the firm itself. The account of the deceased was debited with the sum of Rs. 3,00,000 and simultaneously the three amounts of Rs. 1,00,000 each were credited to the accounts of the respective minors. One of the contentions taken before this court was that a partner was not a creditor of the firm in which he was a partner and that there was no jural relationship of a creditor and debtor between the partner and the firm. A decision of <ORG> in <CITATION> ,  64 ITR 373 (Ker) was referred to in this context. This court did not agree with the decision of <ORG> and after referring to passages in Lindley on Partnership and to a decision in <CITATION> ,  ILR 32 Mad 76 it was pointed out that unless great injustice would be caused, courts would not refuse to recognize a claim for payment of the amount advanced by a partner to the firm and that even if no partial accounting could be ordered, the creditor-partner could file a suit for dissolution and general accounting and claim to be paid before the division of the assets as provided under Section 48 of the Partnership Act. It was pointed out that, in either case, viz., of partial accounting or a suit for dissolution, a partner had a right of an action. With reference to this aspect as to whether there could be a relationship of creditor and debtor between a firm and a partner, we may also refer to a Full Bench decision of five judges reported in <CITATION> , AIR 1928 Mad 923. In that case a distinction was made between the capital contributed by a partner and a separate loan advanced by the partner to the firm, and it was held that the interest paid to the partner was deductible in the assessment of the firm. That case arose prior to the introduction of Section I0(4)(b) into the Act of 1922.

18. In <NAME> case the further question was whether the transfer had complied with the provisions of Section 130 of the Transfer of Property Act. It was held that, as the transaction had been effected by cheques, Section 137 of the Transfer of Property Act took the case out of Section 130 of that Act. It was, therefore, held that Section 10 was not applicable on the facts there.

19. The only other decision of this court to which reference need be made is not yet reported and it was rendered in T.C. No. 292 of 1968 ( <CITATION> ,  98 ITR; 660 (Mad)). In that case the question related to a sum of Rs. 85,000. This sum was the total of two sums, viz., Rs. 60,000 and Rs. 25,000. As regards the gifts covered by the sum of Rs. 60,000 it was found that the deceased gifted Rs. 15,000 each to his four sons on 1st April, 1955. They were first invested in a proprietory concern and later withdrawn and invested in a firm in which the deceased was a partner. As the sum of Rs. 60,000 was gifted in cash by the deceased and as it was subsequently invested in a firm in which the deceased was a partner, this court held that Section 10 was applicable to it. As regards the sum of Rs. 25,000 the contention before <ORG> was that the gifts were effected by making credit entries in favour of the assessee in the partnership accounts by making debit entries against the deceased partner. The further contention, with reference to the said sum, was that it was a gift "shorn of the rights of the partnership to use the same". Alternatively, it was contended that it should be treated as a transfer of "actionable claim". It was pointed out in the judgment that if the gift was made only by book entries in the firm's accounts, then, in view of the decision of <ORG> in <NAME> case and under the principle laid down in <NAME>'s case, the gift had to be taken as shorn of the rights of the partnership to use the monies, in which case Section 10 could not stand attracted; but if it was a case of gift of cash, then Section 10 would apply. The <ORG> was directed to determine the factual question as regards the sum of Rs. 25,000 in consequential proceedings to be taken under Section 64(6) of the Estate Duty Act.

20. We may also point out that <ORG> in <CITATION> ,  98 ITR 610 (Guj) had also to consider the scope of the applicability of Section 10 and have considered it in the light of the decision of <ORG> in <NAME> case. With reference to the sum credited to donees by book entries, <ORG> applied the decision of <NAME> case and held that Section 10 did not apply. With reference to the cases where the amounts were gifted outright by the deceased in favour of the donees who actually received the amounts gifted and thereafter deposited the amounts with the firm in which the deceased was a partner, it was found that the subject-matter of the gift was a sum of money which was given without reservation or qualification, and that, therefore, the gift was not liable to be taken as "shorn of the rights of the partnership".

21. The above discussion would go to show that we have to first ascertain the subject-matter of the gift. We have to see whether it was merely an existing balance in the shape of an actionable claim in which event the provisions of the Transfer of Property Act should have been adhered to. Then the transfer would be subject to the rights of the partnership. If, however, the amounts were gifted in cash, then, there will be nothing to show that the gifts are subject to any particular condition of user in the partnership in which the deceased was a partner. The question as to whether the relevant debits were made in the account of the deceased at the time when he was a partner so that what he had could be treated as an "actionable claim" has not been specifically gone into. If the debit was made in the books of the individual there would be no question of any "actionable claim". Therefore, the <ORG> would have first to ascertain in the proceedings to follow under Section 64(6) the nature of or the subject-matter of the gift to see if it is an "actionable claim" or if it is a gift of cash. If it is a gift of cash, no further consideration is likely to arise as the authorities are clear on the point that the amount is liable to be taxed by applying Section 10 . If it was a transfer of "actionable claim", Section 10 would not apply. This question has to be considered as at the point of time when the gifts were made.

22. There is one other aspect which has to be examined as contended by the learned counsel for the Controller of Estate Duty. If it was a current account, then the contention of the learned counsel was that it could not be treated as an "actionable claim". "Actionable claim" has been defined in Section 3 of the Transfer of Property Act as follows :

" 'Actionable claim ' means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent."

23. The "actionable claim" contemplated in the above definition is what is known to English law as a "chose in action". A "chose" is a chattel personal and is either in possession or in action. "Choses in possession" are movable chattels such as furniture, horses and generally all goods and merchandise. A "chose in action" is a right of proceeding in a court of law to procure the payment of a sum of money (example, a bill of exchange, a policy of insurance, an annuity or a debt)

24. An undivided share in a partnership is a chose in action Ex parte Fletcher : In re Bainbridge, [1878] 8 Ch D 218 (Ch D). As there were difficulties envisaged in applying the English law, the Indian legislature enacted the definition of an actionable claim as given above. In <NAME>'s Transfer of Property Act (sixth edition), at page 807, it is observed :

"A partner's right to sue for an account of a dissolved partnership is an actionable claim, being a beneficial interest in movable property not in possession."

25. In the case of a current account, it is a matter of agreement between the partnership and the partners that the partner is free to withdraw the amount. It is not, therefore, possible to say that it is a mere actionable claim. It is a debt due which was recognised by the partners as payable on demand and its recovery could be enforced against the firm without recourse to a suit for dissolution--<ORG> v. <NAME>. The current account would thus stand out of the category of actionable claims. Any transfer of money from that account would be equivalent to gift of cash, as the donee will be free to deal with it in any manner and at any time he liked. In other words, the donor was not inhibited from demanding and getting back the amount during the currency of the partnership and the donee would have the same right. In such a case, there would be no condition applicable to the amount subject to which alone the transfer is effected. The transfer would thus be unconditional. We would, therefore, hold that, if the amount was a transfer from a current account as such, then it would stand in a distinct category and the applicability of Section 10 would follow. If, however, the transfer was from the capital account or loan account or any other general account to which profits are credited, then Section 10 cannot be applied. We would answer the question as indicated above. In passing the orders under Section 64(6) , the <ORG> would be free to go into all the facts and consider the matter as if it was hearing the appeal by itself. We have in T. C. No. 107 of 1969 ( <CITATION> ,  99 IJR 287 (Mad)) judgment in which was delivered on 20th November, 1974, indicated the scope of the powers of the <ORG> in a matter which goes back to it as a result of the reference. We have held that the powers of the <ORG> in such a matter are as ample as they were at the time when it dealt with an appeal for the first time. We are making these observations only to avoid any misapprehension about the scope of the enquiry which is to be conducted hereafter.

26. As neither party has succeeded, there will be no order as to costs.


CASE NO.: Appeal (civil) 2720 of 2000 PETITIONER: DR. <NAME> Vs. RESPONDENT: JAGDISH DATE OF JUDGMENT: 05/01/2001 BENCH: <NAME> , R.C.Lahoti JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J This appeal by special leave is directed against an order of <ORG> dated 4th February, 2000 rejecting applications (I.A. Nos. 2806/99 and 5957/99) filed by the appellant, the returned candidate, seeking rejection of an electio petition filed by the respondent challenging his election on various grounds contained in those applications.

In the elections to <ORG>, held in 1998, the appellant was declared elected from <ORG> Constituency No. 290, Maheshwar. The defeated candidate (Respondent herein) filed an election petition challenging his election n various ground of commission of corrupt practices, detailed in paragraphs 5 to 17 of the election petition. The election petition had been drawn-up in Hindi language. The affidavit filed in support of the election petition was also drawn up in Hindi anguage. The main objection projected by the appellant in IA 2806/99 to the maintainability of the election petition was that since the affidavit filed in support of allegations of corrupt practice was not drawn up in the manner prescribed by Section 83(1) of t e Representation of the People Act , 1951 (hereinafter referred to as 'the Act') read with Rule 94-A (hereinafter 'the Rules') in the prescribed form No.25, the defect was fatal and the election petition was liable to be dismissed under Section 86(1) of t e Act for non-compliance with the provisions of Section 83 of the Act. The precise objection raised in I.A. No.5957 of 1999 was to the effect that since election petition had been drawn-up in Hindi language and not English language the same was liable to be dismissed not having been drawn up in English language as required by Rule 2(b) of the Madhya Pradesh High Court Rules (hereinafter referred to as '<ORG> Rules'). Both applications were resisted by the election petitioner. Vide order dated 4th February, 2000 a learned Single Judge of <ORG> rejected b th applications.

Mr. <NAME>, learned senior counsel appearing for the appellant, submitted that there was material difference between the verification of the affidavit filed in support of the election petition and the verification of the election petition which rend red the election petition defective and thus liable to be dismissed. Elaborating the objection, it was submitted that in the affidavit dated 11th January, 1999 filed along with the election petition in paragraph KA, the election petitioner had verifie the facts relating to commission of corrupt practice stated in paragraphs 5 to 17 of the petition as true to his "personal knowledge" but in paragraph KHA of the same affidavit, the election petitioner had verified the contents of same "information received by him". It was submitted that this variation in verifying the same facts, both on "personal knowledge" and on "information received", being self-contradictory, rendered the affidavit as paragraphs 5 to 1 of the election petition as being based on "no affidavit" in the eye of law and such a defective affidavit could not be taken into account for trying allegations of corrupt practice in an election petition and, therefore, the election petition was liable to be dismissed in limine under Section 8 of the Act. A perusal of the record reveals that the election petitioner had later on, (possibly to meet the objection regarding defective affidavit) filed an additional affidavit in support of the allegations of corrupt practice verifying the facts stated in parag aphs 5 to 17 as based on his 'personal knowledge' and not on the basis of 'information received' from any other source. That affidavit appears to have been taken on record. According to learned counsel for the respondent on the other hand, none of the grounds raised by the appellant in both the applications could warrant dismissal of an election petition under Section 86 (1) of the Act and <ORG> thus rightly dismi sed both the applications. We have given our thoughtful consideration to the submissions made at the bar and for what follows we are unable to persuade ourselves to agree with the submissions of learned counsel for the appellant. An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of ' Section 81 or Section 82 or Section 107 of the Act'. The requirement of filing an affi avit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine under Section 86 of the Act, for all ged non-compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from the an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Ac in terms cannot be attracted to such a case. <CITATION> :  a three Judge Bench of this Court specifically dealt with an issue concerning defects in the verification of an election petition as well as of defects in the affidavit accompanying an el ction petition wherein allegations of corrupt practice are made. After considering the provisions of Sections 83 and 86 of the Act, as also the requirements of Form No.25 prescribed by Rule 94-A of the Rules and relevant provisions of the Code of Civil rocedure , it was held :

"From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information elieved to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescr bed Form 25 can be cured........"

This judgment was followed by a Division Bench of this Court in <CITATION> : . We are in respectful agreement with the view expressed in <NAME> case (supra) and in view of settled law the conclusion becomes irresistible that defect in verification of an affidavit is curable and does not merit dismissal of an election petition n limine under Section 86 (1) of the Act. The learned Single Judge of <ORG> was, therefore, perfectly justified in dismissing I.A. No.2806 of 1999.

This now takes us to consideration of the objections raised in I.A. No.5957 of 1999 seeking dismissal of the election petition on the ground that the election petition and the affidavit filed in support thereof had been drawn-up in Hindi language and not in English language. The argument raised in <ORG> and reiterated at the <ORG> before us by Mr. <NAME> is that Rule 2(b) of <ORG> Rules provides that every election petition shall be written in English language and since the election peti ion filed by the respondent was written in Hindi and not English language, the same was liable to be dismissed for non-compliance with the said rule, in limine.

<ORG> has framed Rules for trial of election petitions under Article 225 of the Constitution. Under Rule 9 thereof it is provided that the Rules of the High Court shall apply, in so far as they are not inconsistent with the Repre sentation of the People Act , 1951 or the rules, if any, made thereunder or the Civil Procedure Code in respect of all matters. The import of Rule 9 (supra) was considered in <CITATION> :  and this Court opined:

"Moreover, it appears to us that the provisions of Rule 9 of <ORG> Rules regarding the election petitions framed by <ORG> by reference to Rule 7 of <ORG> Rules found in Chapter III r garding affidavits cannot be made use of for this purpose. The former set of rules are made under Article 225 of the Constitution and cannot make any substantive law and the rules themselves on a perusal of them would show that they relate merely to pro edural matters unlike rules made under Section 122 of the Code of Civil Procedure." (Emphasis supplied) Rejecting the preliminary objection to the maintainability of the election petition for non-compliance with the High Court Rules, in <NAME> case this Court held :

"Further more according to Section 86 of the Representation of People Act only petition which do not comply with the provision of Sections 81 or 82 or 117 are liable to be dismissed. We, therefore, over-rule the preliminary objection."

To appreciate the effect of non-compliance with Rule 2(b) of the High Court Rules, it is appropriate to notice some of the relevant statutory provisions at this stage. Rule 2 of the High Court Rules provides:

"2. Every Election petitions shall be -

(a) typewritten or printed fairly and legibly on white foolscap size paper of reasonable quality, one side of the paper only being used, leaving a quarter margin on the left and at least 1/2 inches open space on the top and bottom of each sheet; (b) written in the English language, numbering separately the paragraph thereof; (c) couched in proper language, and in conformity with section 81 , 82 and 83 of the Representation of the People Act, 1951."

Article 329(b) lays down:

"329. Bar to interference by courts in electoral matters -

(a) ... ... ...

(b) no election to either <ORG> of Parliament or to the <ORG> or either <ORG> of the <ORG> of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any l w made by the appropriate <ORG>."

Article 348 (1) provides :

"348. Language to be used in <ORG> and in the High Courts and for Acts, Bills, etc. (1) Notwithstanding anything in the foregoing provisions of this Part, until <ORG> by law otherwise provides-

(a) all proceedings in <ORG> and in every High Court ..............................

shall be in the English language."

Article 348(2) provides as follows:-

"Notwithstanding anything in sub-clause (a) of clause

(l), the Governor of a <ORG> may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the <ORG>, in proceedings in <ORG> having its principal seat in that <ORG>:

Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.

Rules framed by <ORG> relating to trial of election petitions are only procedural in nature and do not constitute "substantive law". Those Rules have to be read alongwith other statutory provisions to appreciate the consequences of non-complia nce with <ORG> Rules. Article 329(b) mandates that no election to either <ORG> or to either <ORG> can be called in question except through an election petition presented to such authority and in such mann r as is provided for by or under any law made by the legislature. Section 81 of the Act deals with the presentation of an election petition while Section 82 deals with parties to the election petition and Section 83 with contents of such a petition.

Article 348 expressly deals with the language to be used in <ORG> and <ORG> and lays down in Article 348 (1) (a) that all proceedings in <ORG> and <ORG> shall be in the English language. Article 348(2) (supra ), however, carves out an exception to the above general rule.

The non-abstante clause with which Article 348(2) opens, unmistakably shows that the Governor of a State, with the previous consent of the President may authorize the use of Hindi or any other language in proceedings in <ORG> having its princip al seat in that State, save and except that "judgment, decree or order passed or made by such High Court", shall be in the English language as required by Article 348(1). By a Notification dated 18th September, 1971 issued by the Governor of Madhya Pradesh, in exercise of the powers conferred by clause (2) of Article 348 of the Constitution of India, with the previous consent of the President of India, authorised the use f Hindi language in all proceedings of <ORG> other than for drawing up decrees, orders and judgments of <ORG>, subject to certain conditions. Under the said Notification, appeals, petitions etc. could thus, be presented in the High Cou t of Madhya Pradesh drawn-up in the Hindi language, notwithstanding the provisions of High Court Rules. Rule 2(b) of <ORG> Rules cannot be so construed as to render the constitutional provisions contained in Article 348(2) as 'meaningless'. ule 2(b) of <ORG> Rules has to be read along with the Notification issued by the Governor on 18th September, 1971 under Article 348(2) of the Constitution and when so construed, it follows that an election petition may be filed in Hindi language and it cannot be dismissed at the threshold under Section 86 of the Act for alleged non-compliance with Rule 2(b) of <ORG> Rules. The question whether an election petition drawn up in Hindi language is maintainable or not came up for consideration before a learned Single Judge of <ORG> of Madhya Pradesh in Election Petition No. 9 of 1980 titled Devilal s/o. Shriram Khada vs. <NAME> and others. While rejecting the challenge to the maintainability of the election petition drawn up in Hindi language, it was said :-

"Now it is true that Rule 2(b) of the aforesaid Rules does provide that every election petition shall be written in the English language. But in the absence of any provision in the Act or the Rules made thereunder, non compliance with Rule 2(b) of the a oresaid Rules cannot be a ground for dismissal of the petition under Section 86 of the Act."

A contrary view was, however, expressed by another Single Judge of that High Court in <CITATION> . In this case it was held that an election petition filed in Hindi language being violative of Rule 2(b) of the Ru es, relating to filing of election petitions, was not maintainable and was liable to be dismissed under Section 86 of the Act. The learned Single Judge opined :

"The Special Rules framed by <ORG>, in the circumstances, taking into account the implications arising under Article 329(b) of the Constitution of India read with Section 80 of the Representation of the People Act, 1951, relating to election pet tions prescribing the manner for presentation of the election petition by necessary implication stand clothed with such a statutory character which could not be deemed to have been affected by an order relating to authorization contemplated under Article 348 (2) of the Constitution of India so as to take away statutory rigour of the Rules prescribing a requirement of an election petition to be written in English language, numbering separately the paragraphs thereof as provided in rule 2 of the aforesaid ules relating to election petitions."

The interpretation placed on rule 2 of <ORG> Rules, giving it almost primacy over Article 348(2) of the Constitution, in <NAME> case to our mind is fallacious. The learned single Judge appears to have lost sight of the position that R les framed by <ORG> in exercise of powers under Article 225 of the Constitution of India are only rules of procedure and do not constitute substantive law and those rules cannot effect the import of constitutional provisions contained in Articl 348(2) of the Constitution. The high pedestal on which Rule 2(b) of <ORG> Rules has been placed in <NAME> case, not only violates clear constitutional provisions but also introduces a clause in Section 86 of the Act which does not xist. The entire approach to consideration of the effect of the notification issued under Article 348(2) appears to be erroneous. That apart, the defect of not fling an election petition in accordance with Rule 2(b) of the Rules is not one of the defec s which falls either under Sections 81 , 82 of 117 of the Act so as to attract the rigour of Section 86 of the Act as rightly held in <NAME>'s case (supra). Whether any other consequences may follow on account of the alleged defects would depend upon ther factors to be determined at the trial of the election petition but to hold that Section 86(1) of the Act would be attracted for non-compliance with Rule 2(b) of <ORG> Rules is not correct. The learned Single Judge of <ORG> was rig t in rejecting application, I.A. No. 5957 of 1999 and holding that an election petition filed by the respondent could not be dismissed under Section 86(1) of the Act for alleged non-compliance with Rule 2(b) of <ORG> Rules relating to presentati n of election petitions.

It appears that the earlier judgment of the learned Single Judge in <NAME>'s case (supra) was brought to the notice of the learned Single Judge hearing <NAME> case. The learned Judge in the later case noticed the identical nature of the two ca ses, but did not share the view of the <ORG> in <NAME>'s case and a contrary view was expressed. It was observed: "It may be noticed that although like cases should be decided alike but this principle is not in absolute rule nor of universal application. It does admit exceptions. Where there is no discussion regarding applicability of the relevant statutory provis ons and the decision has been reached by a <ORG> in the absence of knowledge of a decision binding on it or a statute and in either case it is shown that had the <ORG> had the said material before it, it must have reached a contrary decision, it is clear y a case of a decision per incuriam which has no binding effect. This principle does not extend to a case where if different arguments had been placed before the said <ORG> or a different material had been placed before it, it might have reached a diffe ent conclusion." (Emphasis supplied) We are unable to appreciate as to how the judgment in <NAME>'s case could be styled as "per incuriam". That apart, the ground on which the judgment in <NAME>'s case (supra) has been distinguished does not stand to reason. We have not been able to appreciate the logic of the observations of the learned Single Judge in <NAME>'s case (supra) that the cont oversy in <NAME> case was "quite different" and not confined to the applicability of section 86 of the Act alone. A reference to paragraph 41 of the judgment in <NAME> case dismissing the election petition in limine, brings out the fal acy of the "difference", as perceived by the learned Single Judge. It was observed :

"In view of what has been indicated hereinabove, I have no hesitation in holding that the present election petition as framed is not at all entertainable. Since even the limitation for filing a fresh election petition in accordance with law and in the anner prescribed has also run out, it is not possible or permissible to permit the petitioner to remove the defect in the presentation of the election petition, the present election petition in the circumstances is not at all triable."

(Emphasis supplied) How could it then be said that the controversy in the two cases was, "different" is not understandable ? We are of the considered opinion that the view expressed in <NAME>'s case was correct view of law and the contrary view expressed in <NAME> case does not lay down correct law. As the learned Single Judge was not in agreement with the view expressed in <NAME>'s case, it would have been proper, to maintain judicial discipline, to refer the matter to a larger <ORG> rather than to take a different view. We note it with regret an d distress that the said course was not followed. It is well settled that if a <ORG> of coordinate jurisdiction disagrees with another <ORG> of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it s appropriate that the matter be referred to a larger <ORG> for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal p opriety forms the basis of judicial procedure and it must be respected at all costs. Before parting with this aspect of the case, we wish to recall what was opined in <CITATION> . :  3 SCR 578 : "...If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in <ORG> start overruling one another's decision. If one division bench of <ORG> is unable to distinguish a previous decision of another division bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in <ORG> is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger <ORG>. In such a case lawyers would not know h w to advise their clients and all courts subordinate to <ORG> would find themselves in an embarrassing position of having to choose between dissentient judgments of their own <ORG>..."

These salutary principles appear to have been over looked by the learned Judge deciding <NAME> case. Thus, for what we have said above, we are not persuaded to take a view different than the one taken by <ORG> in the present case. This appeal has no merits. It fails and is accordingly dismissed but with no order as to costs.

We request <ORG> to expeditiously dispose of the election petition. .........................CJI.


JUDGMENT <NAME>, Kt., C.J.

1. These are two cross-appeals from judgments of the First Class Subordinate Judge of <NAME>. In the suit from which Appeal No. 477 is brought, the plaintiffs are claiming a declaration that they are permanent tenants of the suit land, whilst Appeal No. 471 is an appeal in a suit brought by the landlord, defendant in the first suit, claiming possession of the suit property on the ground that the plaintiffs are annual tenants. So that the real point in both appeals is whether the plaintiffs in the first suit are permanent tenants op annual tenants.

2. For the purposes of determining the plaintiffs' title, the suit land is divisible into two parts, the claim of the plaintiffs being different in respect of those two parts. There is, first, the property shown on the exhibited plan within the parallelogram A B C D, which I will refer to as the "A property," and then there is the rest of the suit property, partly to the north and partly to the south of the A property, which I will refer to as the "B property". The A property .consists of six bighas, and the B property of twenty-four bighas. With regard to the A property the relevant facts are these. In the year 1815 the whole of the suit property, so far as we know, was granted by the desai of Nippani to the predecessors-in-title of the defendant (I am referring to the defendant in the first suit, i. e. the landlord). The actual sanad is not produced, although the defendant offered to produce it if called for, and therefore we do not know whether the land was actually in the occupation of the plaintiffs or any body else in 1815. That sanad applies to both the lands A and B, but the next four documents to which I will refer relate only to the A land. The first of those documents is exhibit 182, which is the rent-roll for the year 1837 of the desai of Nippani, showing the cultivators of various lands belonging to him. Amongst those cultivators is included the name of <NAME> as making payment of Rs. 19-14-9 in respect of land in Sankeshvar, which is the village where the land in suit is situated. Then the next document is exhibit 180, which is a similar rent-roll in respect of the year 1841, and that shows that the cultivator of land in Sankeshvar was a man named <NAME>, and the rent he is shown as paying is Rs. 100. Then the next document is exhibit 124, which is a letter written in the year 1844 by the <NAME> to the desai of Nippani relating to a quarrel relating to land of the desai in Sankeshvar. It is said that that letter shows that the land in 1844 was in the possession of the defendant's predecessors-in-title, but we only have the statement in that letter of the <NAME>, and we have not got any answer to that letter. The next document which I should refer to is the document marked exhibit 16 (1), of the year 1848, That purports to be an agreement by the predecessors-in-title of the defendant in favour of the predecessors of the plaintiffs, and it recognises the plaintiffs as being in possession of six bighas of land at Sankeshvar, and agrees to their spending money by constructing a well, and grants them the land for a term of twenty-one years at a rent of Rs. 22 a year, and thereafter, at the rent of Rs. 30 a year, The plaintiffs rely on that document, but the learned Judge held that it was not proved, and in my opinion, the learned Judge's decision on that point was correct. It was sought to prove the document in certain revenue proceedings, to which I will refer presently, which contemned in, 1888, The witness who was called in those proceedings to prove this document stated that he knew the handwriting it was in, but the document was not signed, and that being so, I think the learned Judge was right in holding that it was not proved. We have, therefore, no actual documentary evidence as to the plaintiffs' title to the A land at any rate before about 1855, and the plaintiffs rely on Section 83 of the Bombay Land Revenue Code as raising in their favour a presumption of permanent tenancy. That section provides :

.. where by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.

The plaintiffs say that by reason of the antiquity of this tenancy there is no satisfactory evidence as to its commencement or as to its duration, and the answer of the defendant is that the three documents to which I have referred, the documents of 1837, 1841 and 1844, establish this, that in those respective yelars somebody other than the plaintiffs was in possession of the property, and therefore, it is said, the plaintiffs' possession must have started after 1844, somewhere between 1844 and 1851. It has been held by this Court in a good many cases that Section 83 of the Bombay Land Revenue Code, in referring: to the absence of satisfactory, evidence of the commencement of a tenancy, does not mean that there must be satisfactory evidence as to the exact date of commencement, that is, the day on which the tenancy commenced, but that it is sufficient if the evidence shows that the tenancy must have commenced in. a particular period ; and the degree of elasticity permissible in relation to the period has been the subject-matter of a good many decisions. Here it is-suggested by the defendant that as the period is fixed between 1844 and 1851, there is sufficient evidence as to the commencement. I doubt that proposition, but in any case, to my mind, the documents relied on by the defendant do> not afford any satisfactory evidence that the plaintiffs were not in possession before 1844 or 1837. There is, as I have pointed out, no definite evidence that the plaintiffs were not in possession before 1815, because we have not seen the actual <ORG>. The rent-rolls of the <NAME> in 1837 and 1841, although they refer to land in Sankeshvar, and although it has been admitted that the <NAME> owned no land in that village except the suit land, do not prove that the occupiers referred to in that rent-roll were in occupation of all the <NAME>'s land in Sankeshvar. It was found in 1857 in the revenue suit hereafter referred to that property A. had been in the enjoyment of the plaintiffs' predecessors from a very old time, and that the occupation of that land and property B had become severed by about 1851. There was no particular reason why the <NAME>'s rent-roll should have referred to the names of the cultivators of land, or to the rent they paid, where the land had been granted out to the predecessors of the defendant at a fixed rent of Rs. 100, The letter from the <NAME>, exhibit 124, is also, to my mind, a very weak piece of evidence. It is merely a statement of what the <NAME> was told, and we have not got the answer to tee letter. Therefore, I am not prepared to say that on those documents I consider that there is any satisfactory evidence as to the commencement of the plaintiffs' title in respect of the A property, or as to the duration of their tenancy. Indeed, if exhibit 16 (1) be not proved, ] .there is no evidence at all as to the duration of the tenancy. Therefore, to my mind, the presumption under Section 83 arises. There is nothing in the future £ history of the land to affect that presumption. That future history is bound up with property B, and I will refer to it in connection with the other part of the case.

3. Now coming to property B, the plaintiffs' contention was that they entered into possession of that land as permanent tenants in the year 1851 on the terms of an agreement, which is exhibit 16 (2). The learned Judge held that that exhibits was not proved. It appears that in the year 1855 a suit was commenced in <ORG> by the landlords of this property against the tenants for possession, and in those proceedings this document, exhibit 16 (2), was put in, and a witness was called, who said that he had been a clerk employed by the landlord, that the document was in his handwriting, and that the last words "these are the blessings" were in the handwriting of the landlord. Assuming that the evidence of that witness can be let in under Section 33 of the Indian Evidence Act, I agree with the learned Judge in thinking that this document is not proved. The important thing about it is that it was never signed, and therefore the document written out by the witness was really nothing more than a draft, possibly a fair copy. It is to be noticed, too, that in the revenue proceedings the <ORG> refused to accept the document. Assuming that the document, exhibit 16 (2), is not proved, then the plaintiffs put their case as to the B land in this way. They say that admittedly their title to the B land commenced in 1851, even if they do not prove the actual agreement under which it arose. In these revenue proceedings, started in 1855, the plaintiffs asserted that they were permanent tenants, no doubt relying on exhibit 16 (2), but at any rate there was an assertion that they were permanent tenants. From 1851 both property A and property B have been held together at one rent, and if there is a presumption that the plaintiffs' interest in property A is that of a permanent tenant, the mixing up of that land with property B suggests a similar interest in property B. A uniform rent was paid for both properties down to the year 1879 at the rate of Rs. 127 a year, and thereafter it was enhanced. The plaintiffs' case is that it was never enhanced beyond a figure recognised by local usage, and therefore the enhancement would come within the provisions of Section 83 of the Bombay Land Revenue Code, and would not be inconsistent with permanent tenancy. It is said, further, that in the revenue proceedings of 1855 the Collector refused to make an order for possession, and referred the landlord to a civil suit, and for upwards of sixty years no steps whatever were taken to file any suit or challenge the alleged title of the plaintiffs. It is contended, therefore, that the assertion by the tenants of a permanent tenancy, acquiesced in by the landlord for sixty years, and confirmed by acts of the tenant, such as spending money on the property and paying a much smaller rent than the value of the property warranted, leads to a presumption of permanent tenancy, apart from Section 83 of the Bombay Land Revenue Code, and further, that the landlord having acquiesced in that assertion, his title is barred under Article 144 of the Indian Limitation Act . It is of course admitted that the presumption under Section 83 of the Bombay Land Revenue Code does not arise in the case of the B property, because the date of the commencement of the title is known. To the plaintiffs' case the defendant answers that the only assertion of a permanent title was based on exhibit 16 (2),, which is not proved, and .further, that even if that document was proved, it does not constitute a permanent tenancy, and further again, if it does constitute a permanent tenancy, it also fixes a permanent rent, and subsequent enhancement of the rent is inconsistent with title based on a document fixing the rent.

4. The real question as to property B is one of law, namely, whether when a tenant in occupation of land paying an annual rent asserts at the commencement of his tenancy that he is a permanent tenant, and that alleged claim, although disputed by the landlord, is not challenged by a suit for more than sixty years, the position results in law in the acquisition of a permanent tenancy either under some presumption apart from that contained in Section 83 of the Bombay Land Revenue Code, or under the Indian Limitation Act . On that point of law there are some relevant decisions of <ORG>. There is, first of all, the case of <NAME> v. <NAME> (1923) L.R. 50 I.A. 202 in which it was laid down by their Lordships of <ORG> that they were unable to affirm as a general proposition of law that "a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the lands." I think that the decision comes to this, that where a person is given possession of land as a tenant, the mere fact that he asserts that the tenancy is of a particular kind will not by the lapse of time convert the tenancy into one of that kind. Whether a tenancy is permanent or not must depend on the facts of the case and the agreement between the parties and not on mere assertions. In my opinion that principle applies to the present case, Then <ORG> went rather further in <CITATION> (1923) L.R 51 I.A. 83, where they definitely held that the defendants being tenants could not obtain a right of permanent occupancy by prescription. But Mr. <NAME> on behalf of the appellants relies on another decision of the <CITATION> (1928) L.R. 55 I.A. 212 : S.C. 30 Bom. L.R. 1361. In that case lands were held under a mukarrari agreement and the mukarrari tenant died. The Court held that the tenancy was a tenancy for life which terminated on the death of the mukarraridar, but the mukarraridar's descendents alleged that it was a permanent tenancy and they remained in occupation and continued to pay rent asserting that they were permanent tenants. On the other hand, the landlord always denied their tenancy, and it was held by <ORG>, and affirmed by <ORG>, that the landlord's suit for possession was barred, and the defence set up by the defendants that they were permanent tenants by reason of their occupation and assertion of that right, was accepted. But their Lordships of <ORG>, after referring to the earlier decision of Madhavrao Woman Saundatgekar v. Raghunath Venhatesh Deshpande (1923) L.R. 50 I.A. 255 : S.C. 25 Bom. L.R. 1005, and <CITATION> , and to other cases, say that it is not necessary to consider those cases in detail, because the facts of that case did not bring it within the rulings in question. Then they say (p. 223) : "In this case the evidence goes to j show that after the expiration of the lease for lives the plaintiff's predecessor-in-title did not, in fact, claim to be the landlord, he did not admit any tenancy £ on the part of the defendants or their predecessors, and he did not, in fact, allow the defendants or their predecessors to be in possession as tenants". No doubt the landlord had accepted rent annually from the successors of the tenant. But the view their Lordships took was that the legal result which would normally follow from that course of conduct, namely, the creation of a tenancy between the landlord and the persons who paid the rent was prevented by the fact that the landlord had given receipts for the rent in the name of the deceased mukarraridar. I find it myself rather difficult to, follow how the legal consequences resulting from the acts of the parties in the payment and acceptance of rent could be affected by the receipt for rent having been given in the name of somebody who was dead and had not paid it. But at any rate the whole basis of that decision was that the landlord had never recognised the defendants as tenants, and therefore their possession had always been adverse to him. That is not the position here. Assuming that the tenants have asserted that they were permanent tenants, that alleged title has never been in any way recognised by the landlord, and he has always accepted rent every year, and given a receipt in no special form to the persons who paid the rent, and thereby he has in my opinion recognised those persons as tenants. If they are not permanent tenants, they must, I apprehend, be annual tenants, and it cannot be said, therefore, that their possession has ever been adverse to the landlord. That being so, in my opinion, the learned Judge was right in holding that the plaintiffs had failed to establish a permanent tenancy in respect of the B property. But I think that his judgment was wrong in respect of the A property, and that the plaintiffs do establish a permanent tenancy as to that.

5. With regard to the other Appeal, No. 471, certain objections are taken to the landlord's suit, which, as I have said, is a suit for possession. It is based on a notice to quit expiring in April 1922, and I am clearly of opinion that that notice to quit was waived by a subsequent notice to quit given on September 26, 1925, which is exhibit 172 in the case. The latter notice to quit in terms recognised the defendants as being annual tenants, and paying an annual rent, and the recognition of the tenancy amounts, in my opinion, to-a waiver of the earlier notice to quit. Therefore the plaintiff's suit, in my opinion, was bad, but Mr. <NAME> has asked for leave to amend his claim, by basing his right to possession on the notice of September 26, 1925f exhibit 172, and on terms as to costs we are prepared to give that leave. The notice is also challenged as being an insufficient notice to quit. It is said that it is really a notice to enhance rent, or at any rate only a contingent notice to quit; but as I read the document, I think it is a notice to quit on March 31. 1926" accompanied by an offer to abandon that notice if the tenant would agree to pay a further enhanced rent. Coupling that offer with the notice does not, in my opinion, invalidate the notice. Then it is said that the notice was not served upon defendants Nos. 3, 4 and 5. In the case of defendant No. 3, admittedly it was not served. In the case of defendants Nos. 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well-served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he .has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant. So that, in my opinion, it is clear that this notice was not served on three of the defendants. But it was served on the other defendants, and the defendants are joint tenants of the land, and I think we can follow the ruling of <ORG> in the case of <CITATION> (1918) I.L.R. 46 Cal. 458 : S.C. 21 Bom. L.R. 522, P.C., and decide that service of a notice to quit on one of several joint holders affords prima facie evidence that it has reached the rest. The defendants in question did not go into the witness box to deny that they had received the notice, and therefore the prima facie presumption must prevail. I think, therefore, that subject to the defendant's amending his plaint, and with the necessary variation in the order as to mesne profits, Appeal No. 471 must be dismissed as to property B.

<NAME>, <NAME>

6. I concur. With regard to the grants of 1848 and 1851 on which the appellants rely for the creation of permanent tenancy, I think the lower Court was right in holding that they were not proved. They purport to be only uncertified copies, and are not signed by the executant. It is urged that there are certain words, viz. 'blessings', in these two grants which are deposed to in a previous deposition as having been written by the executant. But it appears from certain receipts in this case, for instance, exhibits 91, 92 and others that the executant <NAME> did affix his signatures to documents, and that being so, it is not shown how it is that in these grants, if they are executed by <NAME>, he has not put his signature but has only written the words, 'blessings'. Besides, in the revenue dispute before the Collector, these two documents, which were relied upon, have been held not proved and it is stated that thereafter they remained in the Collector's record, and are sought to be produced and proved now, mainly by the deposition of a Witness in former revenue proceedings, who says that some of the writings of these two grants are in the handwriting of <NAME>. But that is not sufficient for the proof of these two documents. Even assuming, however, that they are proved, I doubt very much if these two documents would create permanent tenancy at all. At the most they might create a tenancy for the life of the persons in whose favour the grants are made. Therefore these two documents being out of question, the appellants have to rely on Section 83 of the Bombay Land Revenue Code for alleging permanent tenancy. Now with respect to the land of six bighas, the lower Court has held that the origin of the defendants' title to possession of this land is known as having commenced some time between 1844 and 1851, and reliance is placed on three exhibits, 180, 182 and 124, I agree that it cannot be said that the commencement of the tenancy is proved satisfactorily within the meaning of that expression in Section 83 by these three documents. The respondents' ancestors' names are not shown in documents, exhibits 180 and 182, and exhibit 124 is simply a letter by the <NAME> with regard to some dispute raised by one <NAME>, who seems to be a cultivator on that land. If these three documents go out of the question, then the only thing on which we have to go upon is the statement made in the judgment given by the Deputy Collector in 1857, exhibit 84. That would, however, show that with regard to the A land, he was of opinion that the tenant's ancestors were on that land from very ancient times, and in that judgment a clear distinction is made between the A land and the rest of it, and it is stated there that with regard to the A land the tenant's ancestors were in possession from ancient times, and with regard to the entire land, that is, A and B, they were in possession since four or five years. Therefore, on this documentary evidence, it would appear that the antiquity of the tenancy having been proved by the tenants, the landlord has not sufficiently and satisfactorily proved that the tenancy commenced at any particular period. At the most it can be said that the tenancy might have commenced between 1815, from which year the landlord's tenure began, and 1851. But that is - too long and indefinite a period within which it can be said that the tenancy must have commenced at a certain date. Although according to some decisions of this Court the period of twenty years is regarded as one from which it can be shown that the commencement of a tenancy is satisfactorily begun, I think each case must depend upon the evidence produced in it, and I am satisfied that with regard to the evidence produced for the A land, the landlord has not proved that the tenancy with regard to that land commenced at any particular time. The result, therefore, will be that the tenants will be presumed to be permanent tenants, even though there has been some increase in the rent. That is so, because the rent that has been paid by the tenants to the landlord is not simply a rent for the A land, but for the aggregate of the A and B lands, i.e. Rs, 127.

7. Then coming to the B land, it is conceded that the tenants' occupation of this land began at a definite time, viz., 1851, and therefore the appellants cannot invoke the aid of Section 83 for the purpose of proving permanent tenancy. But it has been strongly urged on behalf of the appellants that although they did not get rights of permanent tenancy either by their grant or under Section 83 , they acquired them by adverse possession, and for that reliance has been placed upon a deposition of one of the ancestors of the present appellants, <NAME>, who deposed in previous revenue proceedings that they were holding the lands as permanent tenants by virtue of the grant of 1851; It is urged that since that assertion the tenants have been holding the land claiming to be permanent tenants, and that the landlord has accepted the rent, and has not disputed their status as permanent tenants. Now in order that a person can acquire rights by adverse possession, he must intend to do so in a manner which must be clear , and unambiguous. Here, we are not concerned with the acquisition of rights as absolute owner, but acquisition of rights as a limited owner. In fact it appears that between 1851, in which, according to the appellants, their possession began, and 1855, when the first assertion was made, they have given rent to the landlord for which there are receipts. That would show that they were in possession of the land as tenants. So we have not here the case of entire strangers or trespassers entering on the land for the first time and claiming to hold it adversely as permanent tenants. It is a case of a person who entered on the land as a tenant and paid rent, and subsequently made an assertion of permanent tenancy. But even then it cannot be said that the mere assertion as a permanent tenant would clothe him with the status of a permanent tenant by adverse possession. It must be noted that the plaintiffs' own case in the plaint was that they were permanent tenants at a fixed rent, and the evidence shows conclusively that the rent was changed from Rs. 103 to Rs. 175 even after the assertion of permanent tenancy was made. Very strong reliance-has been placed on behalf of the appellants on a decision of the <CITATION> (1928) L.R. 55 I.A. 212 : S.C. 30 Bom. L.R. 1361, but I agree that that decision, which turns on the special facts of that case, does not apply to the facts of the present case at alt In fact that decision was given on the basis that in that case the relationship of landlord and tenant had ceased between the parties after the assertion of permanent tenancy, and that the rent was taken by the landlord in the name of the original mukarraridars and receipts were also given in their names only, and when the tenants demanded receipts in their own names, the landlord refused to give such receipts, and thereafter no rent was paid. On that, <ORG> made a finding that the landlord did not admit any tenancy on the part of the defendants, and did not in fact allow them or their predecessors to be in possession as tenants. Therefore it is stated that on the special facts of that case, the parties were at. arm's length, the heirs of the lessees were asserting their permanent interest with a liability to pay rent, and they continued to assert it consistently from 1883. Here, however, the facts are entirely different. As I have observed, not only did the tenants pay the rent between 1851 and 1855, but ever since then also they have been paying rent, which the landlord has been accepting, and the rent is also increased. So the relationship of landlord and tenant has subsisted between them after the assertion of permanent tenancy. The present case, therefore, falls within the principle of the decisions in <NAME> v. <NAME> (1923) L.R. 50 I.A. 202, <CITATION> (1923) L.R. 51 I.A. 83, and also of the decision of our <ORG> in <NAME> v. <NAME> (1933) 36 Bom. L.R. 359; and not within the principle of the decision in <CITATION> . That being the only principal argument with regard to this land, I agree, that the appellants ale not permanent tenants thereof, and the decision of the lower <ORG> on that point should be affirmed.

8. With regard to the notice, I agree that the notice as given was not properly served, as it is clear that the registered document was refused. But I agree that the second set of plaintiffs, viz. the <NAME>, were joint among themselves, and held the land jointly, and it is proved in this case that defendants Nos. 5 and 6 did receive the notice, and therefore, they being joint tenants along with defendants Nos. 3 and 4, the latter should also be deemed to have received it. Therefore the suit is not bad on that ground. It is true that the landlord has relied on the notice of 1921 in the plaint, but that is clearly wrong, and I agree that the interests of justice require that the plaintiff should be allowed to amend the plaint.

9. Appeal No. 477 : Allowed as regards property A and dismissed as regards property B. Parties to get their proportionate costs throughout.

10. Appeal No. 471 : Allowed as regards property A. As to property B liberty to amend by pleading the notice of September 1925. Judgment for possession and for mesne profits of property B from three years before this date till delivery of possession. Inquiry, as regards mesne profits of property B and as to the amount of rent to be attributed to property A to be made in execution. Respondent to pay costs throughout in suit No. 243 and Appeal No. 471, but costs of evidence common to both suits to be allowed only in suit No. 132 of 1926.