# GANESHI LAL v. • JOTI PERSHAD

- **Citation:** [1953] 1 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Case number:** Civil Appeal No. 166 of 1951
- **Bench:** MuKHEHJEA, CHANDHASEKHAHA ArYAH, Bhagwati Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganeshi-lal-v-joti-pershad-6
- **Pages:** 12

## Headnote

243
Mortgage-Co-mortgagors-Redemption of entire mortgage by
co-mortgagor paying less than amount really due-Right to contribution from others-Whether limited to their share on amonnt actnally
paid-Principles of equity.
On principles of equity, justice and good conscience, which
apply to the Punjab (where the Transfer of Property Act, 1882,
is not in force) if one of several joint mortgagors redeems the
entire mortgage by paying a sum less than the·full amount due
under the mortgage, he is entitled to receive from his co-mortgagors only their proportionate shares on the amount actually paid
by him.
He is not entitled to claim their proportionate shares
on the amount which was due to the mortgagee under the terms
of the mortgage on the date of redemption.
Hodgson v. Shaw (40 E. R. 70), Digambar Das v. Harendra
Narayan Panday [(1910) 14 C.W.N. 617] and Suryanarayana v.
Sriramulu [(1913) 25 M:.L.J. l6] referred to.
Judgment of the High Court of Punjab at Simla affirmed.
CrvrL APPELLATE JuHISDICTION: Civil Appeal
No. 166 of 1951. Appeal from the Judgment and
Decree dated September 15, 1948, of the High Court
of Judicature for the State of Punjab at Simla (Mahajan and Teja Singh JJ.) in Regular Second Appeal
No. 1844 of 1945 from the Judgment and Decree
dated June 5, 1945, of the Court of the District
Judge, Gurgaon, in Civil Appeal No. 171of1943,
arising out of the Judgment and Decree dated August
27, 1943, of the Court of the Subordinate Judge,
Gurgaon, in Civil Suit No. 11 of 1943.
Tarachand Brijmohanlal for the appellant.
Gurubachan Singh (Radha Krishan Aggarwal, with
him) for the respondent.
1952. November 7.
The Judgment of the Court
was delivered by Chandr:i.sekht1>r::v Aiyar J,
.~2
11i52
Nou. 7 •
244
SUPREME COURT REPORTS
[1953]
1952
'CHANDRASEKHARA AIYAR J.-The plaintiffs, Joti
Ganeshi Lal Prasad and Sat Narain, sued for partition and possesv.
sion of their two-fifths share in the suit properties
Joti Pmhad. alleg'ing that the first defendant was alone in posses-
-
sion of the same, having redee'med a mortgage
Ohandrasekhara executed by the joint family of which the plaintiffs
•hvar J.
and defendants were members, in favour of one
Raghumal in the year 1896 on paying Rs. 5,800.
Defendants 2 to 5 were impleaded as co-sharers. Out
of them, defendants 2 and 3 admitted the claims of
the plaintiffs. Defendant 4 ·died pending suit, and
her name was struck off.
Defendant 5 supported
the first defendant.
On the date of the trial court's
decree, the two plaintiffs were held entitled to onesixth share each.
The first defendant resisted the plaintiffs' claim.
He contended that the redemption by him in 1920
was not on behalf of the joint family as alleged by
the plaintiffs but on his own account as there had
been a disruption of the joint family status much
earlier, and that before the plaintiffs could get any
relief, they were bound to pay him not merely a
proportionate share in the sum of Rs. 5,800 which
he paid to the mortgagee for redemption but their
c)i
share in the original mortgage debt of Rs. 11,200.
He also denied that the original mortgage was executed on behalf of the joint family.
The Subordinate Judge, and on appeal, the High
Court fouud that the original mortgage was a mortgage transaction of the joint family, and that the first
defendant, G:i.neshi I,al, redeemed the mortgage on
his own account and for his own benefit at a time
when there was no longer any joint family in existence. It was further held by the trial court that the
plaintiffs and other co-sharers were bound to pay
their proportionate share· of the amount paid by the
first defendant to
redeem the mortgage, namely,
Rs. 5,800.
But from this a sum of Rs. 1,200 which
he had already received by way of redemption of
certain mortgage rights had to be deducted.
The
District J ndge enhanced this sum of Rs, 4,600 to
t 1
S.C.R.
SUPREME COUR'r RElPORTS
245
Rs. 5,000, as the first defendant had paid taxes due
1952
on the property up to 1940, but he confirmed the
Ganesh

## Text

...
-
S.C.R.
SUPREME COURT REPORTS
GANESH! LAL
v.
•
JOTI PERSHAD.
[MuKHEHJEA, CHANDHASEKHAHA ArYAH and
BHAGWATI JJ.J
243
Mortgage-Co-mortgagors-Redemption of entire mortgage by
co-mortgagor paying less than amount really due-Right to contribution from others-Whether limited to their share on amonnt actnally
paid-Principles of equity.
On principles of equity, justice and good conscience, which
apply to the Punjab (where the Transfer of Property Act, 1882,
is not in force) if one of several joint mortgagors redeems the
entire mortgage by paying a sum less than the·full amount due
under the mortgage, he is entitled to receive from his co-mortgagors only their proportionate shares on the amount actually paid
by him.
He is not entitled to claim their proportionate shares
on the amount which was due to the mortgagee under the terms
of the mortgage on the date of redemption.
Hodgson v. Shaw (40 E. R. 70), Digambar Das v. Harendra
Narayan Panday [(1910) 14 C.W.N. 617] and Suryanarayana v.
Sriramulu [(1913) 25 M:.L.J. l6] referred to.
Judgment of the High Court of Punjab at Simla affirmed.
CrvrL APPELLATE JuHISDICTION: Civil Appeal
No. 166 of 1951. Appeal from the Judgment and
Decree dated September 15, 1948, of the High Court
of Judicature for the State of Punjab at Simla (Mahajan and Teja Singh JJ.) in Regular Second Appeal
No. 1844 of 1945 from the Judgment and Decree
dated June 5, 1945, of the Court of the District
Judge, Gurgaon, in Civil Appeal No. 171of1943,
arising out of the Judgment and Decree dated August
27, 1943, of the Court of the Subordinate Judge,
Gurgaon, in Civil Suit No. 11 of 1943.
Tarachand Brijmohanlal for the appellant.
Gurubachan Singh (Radha Krishan Aggarwal, with
him) for the respondent.
1952. November 7.
The Judgment of the Court
was delivered by Chandr:i.sekht1>r::v Aiyar J,
.~2
11i52
Nou. 7 •
244
SUPREME COURT REPORTS
[1953]
1952
'CHANDRASEKHARA AIYAR J.-The plaintiffs, Joti
Ganeshi Lal Prasad and Sat Narain, sued for partition and possesv.
sion of their two-fifths share in the suit properties
Joti Pmhad. alleg'ing that the first defendant was alone in posses-
-
sion of the same, having redee'med a mortgage
Ohandrasekhara executed by the joint family of which the plaintiffs
•hvar J.
and defendants were members, in favour of one
Raghumal in the year 1896 on paying Rs. 5,800.
Defendants 2 to 5 were impleaded as co-sharers. Out
of them, defendants 2 and 3 admitted the claims of
the plaintiffs. Defendant 4 ·died pending suit, and
her name was struck off.
Defendant 5 supported
the first defendant.
On the date of the trial court's
decree, the two plaintiffs were held entitled to onesixth share each.
The first defendant resisted the plaintiffs' claim.
He contended that the redemption by him in 1920
was not on behalf of the joint family as alleged by
the plaintiffs but on his own account as there had
been a disruption of the joint family status much
earlier, and that before the plaintiffs could get any
relief, they were bound to pay him not merely a
proportionate share in the sum of Rs. 5,800 which
he paid to the mortgagee for redemption but their
c)i
share in the original mortgage debt of Rs. 11,200.
He also denied that the original mortgage was executed on behalf of the joint family.
The Subordinate Judge, and on appeal, the High
Court fouud that the original mortgage was a mortgage transaction of the joint family, and that the first
defendant, G:i.neshi I,al, redeemed the mortgage on
his own account and for his own benefit at a time
when there was no longer any joint family in existence. It was further held by the trial court that the
plaintiffs and other co-sharers were bound to pay
their proportionate share· of the amount paid by the
first defendant to
redeem the mortgage, namely,
Rs. 5,800.
But from this a sum of Rs. 1,200 which
he had already received by way of redemption of
certain mortgage rights had to be deducted.
The
District J ndge enhanced this sum of Rs, 4,600 to
t 1
S.C.R.
SUPREME COUR'r RElPORTS
245
Rs. 5,000, as the first defendant had paid taxes due
1952
on the property up to 1940, but he confirmed the
Ganeshi La.l
main findings of the Subordinate Judge.
A second
v,
appeal preferred by the first defendant was dismissed Joti Pershad.
by the High Court at Simla (Mehr Chand Mahajan
and Teja Singh J J.).
They repelled the contention Cha,,drasekhara
of the first defendant that a suit for partition arrd
Aiyar J.
possession was not maintainable without bringing a
suit for redemption. They also negatived his right
to get a
proportionate share in the amount of
Rs. 11,200 due on the mortgage.
'fwo other learned
Judges gave leave to appeal under section 109 (c)
of the Civil Procedure Code, as a substantial question
of law was involved.
Three points were argued before us by learned·
counsel for the appellant; firstly, there was an assignment of the mortgage in favour of the appellant
with the result that the entire rights of the mortgagee vested in him; secondly, even viewing the
question as one of legal subrogation, he was entitled,
under the principles of justice, equity and good conscience which governed the State of Punjab, as the
Transfer of Property Act has not been applied to the
State, to recover from the co-mortgagors not merely
their shares in the sum of Rs. 5,800 which he had
paid for redemption but their shares in the full
amount of Rs. 11,200 due under the mortgage; and
thirdly, that the suit for partition without asking for
redemption was not maintainable.
Points Nos. 1 and 3 have no force whatever.
The
registered .deed of redemption does not contain any
words of assignment.
To say that Ganeshi Lal shall
be the owner of the entire amount due from the
mortgaged property is
something different from
stating that the security has been assigned in his
favour.
On the other hand, the endorsement of
receipt of payment on the back of the mortgage deed
itself and the statement of the mortgagee that he
has released the mortgaged property from his mort-
$age go to ,.;how that there was no assignment.
246
8 UPREME COD:RT REJPOR'l'S
(1953]
1952
The non-maintainability of the snit does not seem
to have been in issue either before the trial court or
Ganesh·i La,l
J
.•·
before the District udge, and it appears to have been
Joti P..-shad.
rais~d for the first time before the High Court. It
was pointed out by the learned Judges, and quite
Ghandraselchararightly, that so long as no question of limitation was
Aiyar J.
involved, there was no objection to a claim forredemption and one for possession and partition being joined together in the same suit.
Only the second point remains for consideration,
and this raises an interesting question of law. It is
. not denied that Ganeshi Lal who redeemed the prior
mortgage is subrogated to the mortgagee's rights, but
the controversy· is about the extent of his rights as
subrogee.
By virtue of the redemption, does he get
all the rights of the mortgagee and hold the mortgage
as a shield against the co-mortgagors for the full
amount due on the mortgage on the date of redemption whatever he may have himself paid to get it
discharged, or does he stand in the mortgagee's shoes
only to the extent of getting reimbursed from the comortgagors for their shares in the amount actually
paid by him? 'l'hoi lower courts have held that the
latter is the correct position in law, but the appellant
has challenged it as·unsound.
'!'he first two clauses of the present section 92 of
the Transfer of Property Act run in these terms:
"Any of the persons referred to in section 91
(other than the mortgagor) and any co-mortgagor
shall, on redeeming property subject to the mortgage,
have, so far as regards redemption, foreclosure or sale
of such property, the same rights as the mortgagee
whose mortgage he redeems may have against the
mortgagor or any other mortgagee.
The right conferred by this section is called the
right of subrogation, and a person acquiring the same
is said to be subrogated to the rights of the mortgagee
whose mortgage he redeems."
It is a new section and was inserted by the amending Act XX of 1929.
The original sections 74 and
,I
-.,
S.C.R.
SUPREME COURT REPOHTS
247
7 5 conferred the right to redeem in express terms
1952
only on second or other subsequent mortgagees,
Ganeshi Lal
though the co-mortgagor's right to subrogation on
v.
redemption was recognised even before the Act.
As Joti Per shad.
the Transfer of Property Act has not been extended
to the State of East Punjab, it is unnecessary to Ghandrasekhara
decide whether section 92 is retrospective in its
Aiyar J.
operation, on which point there has been a conflict
of opinion between the several High Courts.
Section
95 of the Act which removed the confusion caused by
the old section which, conferring on the co-mortgagor
what was called a charge, a,nd thus seeming to negative the application of the doctrine of subrogation, is
also inapplicable to the present case. We therefore
steer clear of sections 7 4 and 7 5 of the old Act and
sections 92 and 95 of the present Act, and we are free
to decide the question on principles of justice, equity
and good conscience.
If we remember that the doctrine of subrogation
which means substitution of one person in place of
another and giving him the rights of the latter is essentially an equitable doctrine in its origin and application, and if we examine the reason behind it, the
answer to the question which we have to decide in
this appeal is not difficult.
Equity insists on the
ultimate payment of a debt by one who in justice and
good conscience is bound to pay it, and it is well
recognised that wheFe there are several joint debtors,
the person making the payment is a principal debtor
as regards the part of the liability he is to discharge
and a surety in respect of the shares of the rest of the
debtors.
Such being the legal position as among the
co-mortgagors, if one of them redeems a mortgage
over the property which belongs jointly to himself
and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him
in the matter of redemption; he can call upon the
co-mortgagors to contribute towards the excess which
he has paid over his own share.
This proposition is
postulated in several authorities. In the early case
of Hodgson v. Shaw (1) Lord Brougham i;aid:
(I) 3 My!. & K. 183; 40 E. R. 70,
248
SUPREME COURT REPOR'rs
[1953]
"'l'he rule is undoubted, and it is one founded on
the plainest principles of natural reason and J·ustice,
Gaiieshi Lal
v.
that the surety paying off a debt shall stan·d in the
1952
Joti p,,·,had. pl;,ce. of the creditor, and have all the rights which
he has, for the purpose of obtaining his reimburseChandrasekhara rne1it.''
. Aiya1' J.
I have italicised
the word "reimbursement".
Sheldon in his well-known treatise on Subrogation
has got the following passage in section 13 of the
Second Edition :
" There is another class of cases in which he who
has paid money due upon a mortgage of land to
which he had some title which might be affected or
defeated by the mortgage, and who was thus entitled
to redeem, has the right to consider the mortgage as
subsisting in himself, and to hold the land as if it
subsisted, until others interested in the redemption,
or who held also the right to redeem, have paid a
contribution."
Be it noted that what is spoken of here is a
contribution:
Dealing with the subject of subrogation of a surety
by payment of a promissory note and citing the
observations of the Alabama Court, Harris says in
his work on Subrogation (1889 Edition) at page 125:
"The rule is, that a surety paying a debt, shall
stand in the place of the creditor; and is entitled to
the benefit of all the securities which the creditor
had for the payment of the debt, from the principal
debtors; in a word, he is subrogated to all the rights
of the creditor; the surety, however, cannot avail.
himself of the instrument on which he is surety, by
its payment. By payment it is discharged and ceases
to exist, and the payment will not, even in equity, be
considered an assignment; the surety merely becomes
the creditor of the principal to the amount paid for
him."
To compel the co-debtors or co-mortgagors to pay
more than their share of what was paid to the credito1·
or mortgagee would be to perpetrate an inequity or
•
""' -
\
'y
-
S.O.R.
SUPREME COURT REPORTS
249
injustice, as it would mean that the debtor who is in a
l962
position to pay and pays up can obtain an ad vantage
Ganeshi Lal
for himself over the other joint debtors.
Such a
v.
result will not be countenanced by equity; fitte
Joti Pershad •.
favouritism shown by law to a surety, high as it is,
-
does not extend so far.
The surety can ask to be Chandrasekhara ·
indemnified for his loss: he can invoke the doctrine
Aiyar J.
of subrogation as an aid to his right of contribution.
Sheldon says in section 105 of his book:
" The subrogation of a surety will not be carried
further than is necessary for his indemnity; if he
buys up the security at a discount, or makes his payment in a depreciated currency, he can enforce it
only for what it cost him.
He cannot speculate at
the expense of his principal; his only right is to be
.d,,
repa1 .
•
In section 178, Harris is still stronger.!
"Since subrogation is founded on principles of
equity, the surety who would avail himself of the
doctrine and invoke equity must do equity; and
while he is entitled to a reimbursement in all that
he pays out properly for his principal, debt, interest
and cost, he is not entitled, in any way to recover
more than he has paid.
For instance, if he pays the
debt of his principal, in depreciated currency, the
rule would seem to be that he could demand from the
principal only .the value of that currency at the time
he made the payment. Nor would he upon principles
of equity be permitted to purchase the debt at a discount and then be subrogated to collect the whole face
value of the debt, and especially if he held securities,
or if the creditor held securities which would fall into
his hands, out of which to pay the debt; because the
securities are trust funds for the purpose, and set
aside .for the payment of that debt and an assignee of
trustee cannot speculate in the purchase of claims
against the fund in his hands. It would· not be equality; it would not be equity."
While it can be readily conceded that the joint
debtor who pays up and discharges the mortgage
250
SUPREME COURT REPORTS
[1953]
stands in the shoes of the mortgagee, and seoures to
himself the benefit of the security by such payment,
Ganeshi Lal the extent to which he can enforce his right as
19.52
v.
Joti Pershod.
ag~inst the other joint debtors is a different matter
altogether.
In his monumental work on Equity
Cha.•d_rasekhara Jurisprudence, Pomeroy points out that he will be
A•v•' J,
subrogated to the rights of the mortgagee only to the
exteBt necessary for his own equitable protection.
(See page 632 of Volume IV of the Fifth Edition by
Symons).
Clearer still is the passage found at
page 640 of the same book:
" The mort,qagor himself who has conveyed the premises to a grantee in such manner that the latter has
assumed payment of the mortgage debt becomes an
equitable assignee on payment, and is subrogated to
the mortgagee, so far a& is necessary to enforce his
equity of reimbursement or exoneration from such
grantee."
It is as regards the excess of the payment over his
own share that the right can be said to exist.
Pomeroy says this at pages 660 aud 661 :
"In general, whenever redemption by one of the
above-mentioned persons operates as an equitable
assignment of the mortgage. to himself, he can keep
the lien of'it alive as security against others who are
also interested in the premises, and who are bound to
contribute their proportionate shares of the sum
advanced by him, or are bound, it may be, to wholly
exonerate him from and reimburse him for.the entire
payment ......... The doctrine of contribution among all
those who are interested in having the mortgage
redeemed, in order to re fund the redemptor the excess
of his payment over and above his own proportionate
share, and the doctrine of equitable assignment in
order to secure such contribution, are the efficient
means by which equity completely and most beautifully works out perfect justice and equality of burden,
under these circumstances .................. "
Whatever the difference might be between the
English law and the J11dial) law as re!l'ards the right
-
S.C.R.
SUPREME COURT REPORTS
251
to enforce decrees and securities for the due payment
196!1
of a debt in the case of a surety who discharges a
Ganeshi Lal
simple money debt and a surety who pays up a m<lrtv.
gage, it is still noteworthy that Section V of the Joti Pershad.
Mercantile Law Amendment Act of 1856 (England)
-
provided for indemnification by the principal debtorOhand_rasekhara
for the advances made and loss sustained by the
A•yar J.
surety.
There is a distinction in this respect between a
third party who claims subrogation and a co-mortgagor who claims the right, and this is brought out
by Sir Rashbehary Ghose in his Law of Mortgage in
India, Volume I, 5th Edition. He says at page 354,
pointing out that co-mortgagors stand in a fiduciary
relation:
" I should add that an assignee of a mortgage is
entitled, as a rule, to recover whatever may be due
on the security. But if he stands in a fiduciary relation, he can only claim the price which he has
actually paid together with incidental expenses."
The right of the co-mortgagor who redeems the
mortgage is spoken of as the right of reimbursement
at page 372 in the following passage:
" Strictly speaking, therefore, when one of several
mortgagors redeems a mortgage, be is entitled to be
treated as an assignee of the security which he may
enforce in the usual way for the purpose of re-imbursing himself."
The redeeming co-mortgagor being only a surety
for the other co-mortgagors, his right is, strictly
speaking, a right of reimbursement or contribution,
and in law, when we have regard to the principles of
equity and justice, there should be no difference
between a case where he discharges an unsecured debt
and a case where he discharges a. secured debt. It is
unnecessary for us to decide in this appeal whether
section 92 of the 'l'ransfer of Property Act was intended to strike a departura from this position when it
states thab Hie co-μiortga.gor shall have the sam~
33
252
SUPREME COURT REPORTS
[1953)
195M
rights as the mortgagee whose mortgage he redeems,
and whether it was intended to abrogate the rule of
Ganeshi Lal
v.
eq\lity as between co-debtors, and provide for the enJoti Pe'8had. forcement of the liability on the basis of the amount
due under the mortgage; and this is because, as has
Chandrasekhar• been already stated, we are governed not by the
Aiyar J.
statute but by general principles of equity and justice.
If it is equitable that the redeeming co-mortgagor
should be substituted in the mortgagee's place, it is
equally equitable that the other co-mortgagors should
not be called upon to pay more than he paid in discharge of the encumbrance.
In this connection, reference may be made with
advantage to the decision of Sir A~utosh Mookerjee
and Tennon JJ. in Digambar Das v. Harendra Narayan
Panday (1) where the question arose as regards the
the rate of interest and the period for which the
redeeming co-mortgagor would be entitled. 'l'here is
an elaborate examination of the nature of the right
of subrogation obtained by one of several joint comortgagors who redeems the mortgaged property, and
in the course of the discussion the following observations occur:
"In so far as the amount of money which he is entitled to recover from his co-mortgagors is concerned,
he can claim contribution only with. reference to the
amount actually and properly paid to effect redemption to which sum he can add his legitimate expenses
............ The
substitution, therefore, of the new
creditor in place of the original one, does not place
the former precisely in the position of the latter for
all purposes .......... lf therefore one of several mortgagors satisfies the entire mortgage debt, though upon
redemption he is subrogated to the right and remedies
of the creditor, the principle has to be so administered
as to attain the ends of substantial j'ustice regardless
of form; in other words, the fictitious cession in
favour of the person who effects the redemption,
operates only to the extent to which it is necessary
to apply it for his indemnity and protection."
(1) (1910) 14 C.W.N. 617.
-;-
•
-.
.... -
-
.
4
S.O.R.
SUPREME COURT REPORTS
253
There is a definite expression of opinion by the
195JI
Madras High Court on the point in the decision reGansshi Lal
ported in Suryanarayana v. Sriramulu(1). In that
v.
case, a purchaser of a half share of the equitS of Joli Psrshad.
redemption claimed to recover half of the amount of
the mortgage on the security of the other share in the Ohan~rasskhara
hands of the defendant, and it was held that as his
Aiyar J.
purchase of the decree on the mortgage was prior to
his purchase of the equity of redemption, he was entitled to the fu II amount claimed by him.
The
learned Judges distinguish the case from one where
one of two mortgagors discharges an encumbrance
binding on both, and say that in such a case the
mortgagor doing so could not recover from his comortgagors more than a proportionate share of the
amount actually paid by him.
After this rather lengthy discussion of the subject,
we consider it unnecessary to notice and comment on
the several decisions cited for the appellant. It may
be said generally that they only lay down that in
cases where the Transfer of Property Act, as it stood
originally or as amended in 19;.!9, is not applicable,
we are governed by the principles of equity, justice
and good conscience, and that sections 92 aud 95 embody such principles. None of the cases deals with
the extent or degree of subrogation, and there is
nothing in them which runs counter to the view that
the doctrine must be applied along with other rules
of equity, so that the person who discharges the
mortgage is amply protected, and at the same time
there is no injustice done to the other joint debtors.
He who seeks equity must do equity, and we shall be
violating this rule if we give effect to the appellant's
contention. The High Court, in our opinion, reached the correct conclusion.
The parties are not agreed on the shares to which
the plaintiffs are entitled, and this is because after the
date of the final decree some of the branches have
become extinct by the deaths of their representatives.
Whether under customary law in the Punjab, uncles
(J) (r913) z5 M.L.J. 16.
254
SUPREME COURT REPORTS
[1953]
1952
exclude nephews or they take jointly, and whether
succession is per stirpes or per capita, was the subi"ect
Ganeshi Lal
v.
of disagreement at the Bar before us.
This question
Joti Pershad. must therefore be left over for determination by the
trial court, and the case will have to go back to that
Ghan~rasekhara court for effecting partition and deli very of posses-
,i.yar J.
sion according to the shares to which the plaintiffs
may be found entitled. ·
1953
Nov.10 ..
Subject to what is contained in the foregoing paragraph, the appeal will stand dismissed with costs.
Appeal dismissed.
Agent for the appellant: Nehal Chand Jain.
Agent for the respondent: B. P. Maheshwari.
THE S'rA'l'E OF PUNJAB
v.
AJAIB SINGH AND ANOTHER
(PATANJALI SASTRI C.J., MUKHERJEA, DAS,
VIVIAN BosE, and GHULAM HASAN.JJ.].
Abducted Persons (Recovery and Restoration) Act (LXV of
1949) ss. 4, 6, 7-Constitution of India, Arts. 14, 15, 19 (1) (d), (e),
(g), 21, 22-Law authorising police officers to take abducted persons
into custody and deliver such persons to officer in charge of campConstitutional vaUdity-"Arrest and detention", meaning of-Sc<>]Je
of Art. 22-Construction of statutes.
The Abducted Persons (Recovery and Restoration) Act (Act
LXV of 1949) does not infringe art. 14, art. 15, art. 19 (1) (d), (e)
and (g), art. 21 or art. 22 of the Constitution and is not unconstitutional on the ground that it contravenes a,ny of these provisions.
The physical restraint put upon an abducted person in the
process of recovering and ta.king that person into custody without
any allegation or accusation of any actual or suspected or appre·
bended commission by that person of any offence of a criminal or
quasi.criminal nature or of any act prejudicial to the State or the
public interest, and delivery of that person to the custody of the
officer in charge of the nearest camp under s. 4 of the Abducted
Persons (Recovery and Restoration) Act (LXV of 1949) is not
arrest and detention within the meaning of art. 22 (1) and (2) of
the Constitution.
The said Act does not therefore infringe the
fundamental right guaranteed by art. 22 of the Constitution.
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