# S. KHADER SHERIFF v. MUNNUSWAMI GOUNDER AND OTHERS

- **Citation:** [1955] 2 S.C.R. 469
- **Court:** Supreme Court of India
- **Decided:** 1953-02-28
- **Bench:** S. R. DAs, Acting C. J, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-khader-sheriff-v-munnuswami-gounder-and-others-1502
- **Pages:** 9

## Headnote

Election Dispute-Non-disclosure by returned candidate of sums
paid to party funtis in his return of elet;_tion expenses-Such sums, if'
spent for
purposes of election-Commencement
of candidatureExpense in excess of the prescribed limit-Election declared void by
Tribunal-Resulting
disqualification-Finding, if must be after
notice-Representation of the
People Act (No. XLIII of 1951), ss.
79(b), 99 proviso, 123(7), 140.
The appellant, who fought and won the election as a Congress
candidate, had applied to the
Tamil Nad Congress Committee on
12-9-51 for party nomination stating his desire "to contest
as a
Congress candidate in the forthcoming election" and paid a sum
of Rs. 500 of which Rs. 100 was subscription for membership and
Rs. 400 a deposit, liable to be r.efunded in case the application was
refused. On 23-9-51 he paid another sum of Rs. 500 as donation to
the District Congress Committee. On 13-11-51 he was adopted by
the Congress as its candidate.
His nomination paper for the election
was filed on 16-11-51.
The charge against him in the election petition was that he had failed to include these two sums in his return of
election expenses and with the addition of these sums the maximum
limit of election expenses prescribed for the constituency would be
exceeded. The Tribunal found that both these sums were paid for
election purposes and the maximum prescribed had been exceeded
and, therefore, s. 123(7) had been contravened and declared the
election void under s. 100(2)(b) of the Act.
The Tribunal also recorded a finding that the appellant was liable to the disqualifications
specified in s. 140, clauses (l)(a) and (2).
Held, affirming the decision of the Tribunal, that the exact point
of time from which a person must be deemed to be a candidate within the meaning of s. 79(b) of the Representation of the People Act is
the time when, with the ·election in prospect, he himself decides to
stand as a candidate and communicates such decision to others leaving no manner of doubt as to his intention.
This must be an act of
his own volition and no.t that of other persons or bodies adopting
him as their candidate.
The Lichfield case, [1895] 5 O'M. & H. 1, referred to.
That the applicant was a candidate from the date of his application to the Tamil Nad Congress Committee and the two sums
were election expenses incurred by him and should have been shown
in his return.
1955
S. Khadar Sheri.ff
v.
Munnuswami
Coundn and othlrs
470
SUPREME COURT REPORTS
[1955]
That the con1mencement of candidature in a particular case is a
question of fact to be determined by the Tribunal and its decision in
this regard is not liable to be reviewed by the Supreme Court in an
appeal by special leave.
That whether a particular sum paid at the time or on the eve
of the election was a donation, an act of charity or an election ex~
pense must depend on whether or not such payment was open to the
charge of having been made in order to induce the voters to vote in
favour of the donor. This again is a question of fact to be decided by
the Tribunal.
The Wigan case,
[1881] 4 O"M. & H. 1, and
The Kingston
case [1911] 6 O' M. & H. 274, relied on.
The Kennington case, (1886] 4 O'M. & H. 93, held inapplicable.
1"hat it was not necessary for the
Tribunal to serve a notice
under the proviso to s. 99 of the
Act on the appellant, a party to the
election
petition, to enable the Tribunal to
record his liability to
disqualification under s. 140 of the
Act in respect of the charge
levelled against him.
CIVIL
APPELLATE
J URISDIC1'ION :
Civil
Appeal
No. 26 of 1955.
Appeal under Article 136 of the Constitution of
.India from
the Judgment and Order dated the 28th
February, 1953,
of the Election Tribunal, Vellore, in
Election Petition No. 84 of 1954.
N. C. Chatterjee, (R. Ganapathy Iyer, with him),
for the appellant.
N aunit Lal, for respondent No. 1.
1955.
September,
15.
The
Judgment of the
Court was delivered by
VENKATARAMA
AYYAR
J.-This
is
an appeal by
~pecial leave against the orde

## Text

2S.C.R.
SUPREME COURT REPORTS
469
S. KHADER SHERIFF
v.
MUNNUSWAMI GOUNDER AND OTHERS.
[S. R. DAs, ACTING C. J. and VENKATARAMA
AYYAR J.]
Election Dispute-Non-disclosure by returned candidate of sums
paid to party funtis in his return of elet;_tion expenses-Such sums, if'
spent for
purposes of election-Commencement
of candidatureExpense in excess of the prescribed limit-Election declared void by
Tribunal-Resulting
disqualification-Finding, if must be after
notice-Representation of the
People Act (No. XLIII of 1951), ss.
79(b), 99 proviso, 123(7), 140.
The appellant, who fought and won the election as a Congress
candidate, had applied to the
Tamil Nad Congress Committee on
12-9-51 for party nomination stating his desire "to contest
as a
Congress candidate in the forthcoming election" and paid a sum
of Rs. 500 of which Rs. 100 was subscription for membership and
Rs. 400 a deposit, liable to be r.efunded in case the application was
refused. On 23-9-51 he paid another sum of Rs. 500 as donation to
the District Congress Committee. On 13-11-51 he was adopted by
the Congress as its candidate.
His nomination paper for the election
was filed on 16-11-51.
The charge against him in the election petition was that he had failed to include these two sums in his return of
election expenses and with the addition of these sums the maximum
limit of election expenses prescribed for the constituency would be
exceeded. The Tribunal found that both these sums were paid for
election purposes and the maximum prescribed had been exceeded
and, therefore, s. 123(7) had been contravened and declared the
election void under s. 100(2)(b) of the Act.
The Tribunal also recorded a finding that the appellant was liable to the disqualifications
specified in s. 140, clauses (l)(a) and (2).
Held, affirming the decision of the Tribunal, that the exact point
of time from which a person must be deemed to be a candidate within the meaning of s. 79(b) of the Representation of the People Act is
the time when, with the ·election in prospect, he himself decides to
stand as a candidate and communicates such decision to others leaving no manner of doubt as to his intention.
This must be an act of
his own volition and no.t that of other persons or bodies adopting
him as their candidate.
The Lichfield case, [1895] 5 O'M. & H. 1, referred to.
That the applicant was a candidate from the date of his application to the Tamil Nad Congress Committee and the two sums
were election expenses incurred by him and should have been shown
in his return.
1955
S. Khadar Sheri.ff
v.
Munnuswami
Coundn and othlrs
470
SUPREME COURT REPORTS
[1955]
That the con1mencement of candidature in a particular case is a
question of fact to be determined by the Tribunal and its decision in
this regard is not liable to be reviewed by the Supreme Court in an
appeal by special leave.
That whether a particular sum paid at the time or on the eve
of the election was a donation, an act of charity or an election ex~
pense must depend on whether or not such payment was open to the
charge of having been made in order to induce the voters to vote in
favour of the donor. This again is a question of fact to be decided by
the Tribunal.
The Wigan case,
[1881] 4 O"M. & H. 1, and
The Kingston
case [1911] 6 O' M. & H. 274, relied on.
The Kennington case, (1886] 4 O'M. & H. 93, held inapplicable.
1"hat it was not necessary for the
Tribunal to serve a notice
under the proviso to s. 99 of the
Act on the appellant, a party to the
election
petition, to enable the Tribunal to
record his liability to
disqualification under s. 140 of the
Act in respect of the charge
levelled against him.
CIVIL
APPELLATE
J URISDIC1'ION :
Civil
Appeal
No. 26 of 1955.
Appeal under Article 136 of the Constitution of
.India from
the Judgment and Order dated the 28th
February, 1953,
of the Election Tribunal, Vellore, in
Election Petition No. 84 of 1954.
N. C. Chatterjee, (R. Ganapathy Iyer, with him),
for the appellant.
N aunit Lal, for respondent No. 1.
1955.
September,
15.
The
Judgment of the
Court was delivered by
VENKATARAMA
AYYAR
J.-This
is
an appeal by
~pecial leave against the order of the Election Tribunal,
Vellore, declaring - the
election
of
appellant
to
the Legislative Assembly
void on the ground that
there
had
been a violation of section 123(7) of the
Representation of
the People Act No. XLIII of 1951.
Under
that
section, it is a major corrupt practice for
a candidate or his agent
to incur or authorise the incurring of expenditure
in contravention of the Act
or any rule made
thereunder.
Rule 117 provides that:
"No expense shall be incurred or authorised
by a
2 S.C.R.
SUPREME COURT REPORTS
471
candidate or his election agent
on account of or in
respect of the conduct and management of an election
in any one constituency
in a State in
excess of the
maximum amount specified in respect of that Constituency in Schedule V."
Under Schedule V, the maximum expenses specified
for election to the Madras
State
Legisfature from a
single-member constituency, such as
Ranipct, is
Rs.
8,000.
The return
of the expenses lodged by the appellant showed that he had spent in all Rs. 7,fXl3 for
the election,
and that
was within the limit allowed.
The charge against him in the petition was that he
had failed to disclose
in his return two sums of Rs.
500 each, spent for election purposes, and that with
the aadition
of
those amounts, the maximum specified had been exceeded. As regards the first amount,
the facts
found are that on 12-9-1951
the appellant
applied to the Tamil Nad Congress Committee for permission to contest the election as a Congress candidate, and along with his application he paid Rs. 500
out of which Rs. 100 was subscription for
membership and Rs. 400 deposit,
which was liable to be returned under the rules,
in case the applicant was not
adopted. as the candidate, but
not otherwise. In fact.
the appellant was adopted as the Congress candidate,
and it was on that ticket that he fought and won the
election.
The second payment
of Rs. 500 was on
23-9-1951 to the North Arcot District Congress Committee,
which
was in charge of the Ranipet Constituency.
The Tribunal
held
that
both these sums
were paid for purposes of election and
should have
been included in the return made by the appellant,
that if they were so included, the maximum prescribed
was exceeded,
and that therefore section 123(7) had
been contravened, and accorqingly
declared the election void under
section 100(2) (b)
of
the Act. The
appellant
disputes
the correctness of this order. The
Tribunal also recorded
as part of the order a finding
that the appellant
had become subject to
the disqualifications
specified in
section
140,
sub-clauses
( 1) (a) and (2). The appellant attacks this finding on
1955
S. Eluzthr S'"'i/f
,,.
M-111ami
G-4n and olltm
Ynikalarama
.d.uar J.
1955
S. K/ilukr S""if!
v.
Munnunoami
G=uler and othm
472
SUPREME COURT REPORTS
[1955]
the ground that it was given without notice to him,
as required
by the proviso to section 99.
The points that arise for decision in
this appeal arc
( 1) whether on the facts found, there was a contravention of section 123(7) of Act No. XLIII of 1951 ;
and (2) whether
the finding that the appellant had
become disqualified under section 140 is bad for want
of notice under the proviso to section 99 of the Act.
( 1) Taking first the sum of Rs. 500 paid by the appellant to
the Tamil
Nad Congress Committee
on
12-9-1951, the contention of the appellant
is that section 123(7) and Rule 117 have reference
only to expenses incurred by a candidate or his agent, that the
appellant was
nominated
as
a candidate only on
16-11-1951, and that as the payment in question was
made long prior to the filing of the nomination paper,
the provisions
aforesaid had
no
application.
That
raises
the question
as to when the appellant became
a 'candidate' for purposes
of section 123(7).
Section
79(b) of Act No. XLIII of 1951 defines a candidate
thus:
"Candidate" means a person
who has
been or
claims to have been duly nominated as a candidate at
any election, and any such person shall be deemed to
have been a candidate as from the time when, with the
election in prospect,
he bagan to hold himself
out as
a prospective candidate".
Under this definition which applies
to section 123(7),
all election expenses incurred
by a
candidate
from
the time when, with the election in prospect, he holds
himself out as a prospective candidate and not merely from the date when he is nominated, will have to
enter into
the reckoning under Rule 117 read with
Schedule V. That the election was in prospect when
the amount of Rs. 500 was paid is
clear from the
very
application
of the
appellant dated
12-9-1951
wherein he states
that he desires
"to
contest as a
Congress
candidate
in
the forthcoming
election".
That is not disputed
by the appellant. What he contends is that though the election was in prospect, he
had not become a prospective candidate at that time,
and that he became
so only when
the Congress
2 S.C.R.
SUPREME COURT REPORTS
473
adopted him as its candidate
on 13-11-1951.
It was
argued that it was open to the Congress Committee
either to adopt him as its candidate or not, that if it
did not adopt him, he could not, under the rules to
which he
had
subscribed,
stand
for election
at
all,
that until he was actually adopted therefor, his
candidature was nebulaus
and
uncertain,
and
that
the
application
w:is consequently nothing more
than
a preliminary step-in-aid of his becoming a prospective candidate.
The question when a person becomes a candidate
must
be
decided
on the language of section 79(b ).
Under
that section,
the candidature commences when
the pe1son begins to hold himself out as a prospective
candidate.
The
determining
factor therefore is the
decision of the candidate himself, no the act of other
persons or
bodie~ adopting
him as their candidate.
In The Lich field case(1) at page 36, Baron Pollock
observed:
"I think the proper mode of judging a question of
this kind is to take it from the point of view of the
candidate himself.
Every
man must judge when he
wi!l throw himself
into the arena .... But it is his own
choice when he throws down the glove and commences
his candidature".
When, therefore, a
question
arises
under section
79(b) whether a person had become a candidate at a
given point of time, what has to be seen is whether at that time,
he
had clearly and unambiguously
deciared his intention to stand as a candidate, so that'
it could
be said of him that he held
himself out as
a
prospective
candidate.
That
he
has
merely
formed an intention
to
stand
for election is not
sufficient to make him
a prospective
candidate,
because
it is of the essence of the matter that · he should
hold himself
out as a prospective
candidate.
That
can only be if he communicates that intention to the
outside world by declaration or conduct from which
it could be inferred that he intends to stand as a
candidate.
Has that been established in this case ?
When the appellant made the payment of Rs. 500 to
11)5 0.' M. & H. l.
12-83 S. C. India/59
1955
s. Khaur Shniff
v.
Munnuswa•i
Goundtr and olhws.
V tnktttarama
Ayyar J.
1955
S. lfluldw SMtjf/
v.
MG-mr atul .,,,,,,
474
SUPREME COURT REPORTS
[1955]
the Tamil Nad Congress Committee, did he merely
evince an intention to stand as a candidate, or did he
hold himself
out
as a prospective candidate? The
application contains
a clear declaration
of his intention
to
contest the election, and that declaration is
backed by the solemn act of payment of Rs. 500.
The
appellant had thus clearly
and unambiguously conveyed
to
the
Committee his intention to stand as a
candidate, and he thereby became a prospective candidate within
the meaning of section 79(b). The possibility
that
the Congress might
not adopt him as its
candidate does
not,
as already mentioned,
affect the
position, as the section has regard only to the volition
and conduct of the candidate.
It is true that if the
Congress did not adopt him, the appellant might not
b,e able
to stand
for election.
But such a result is
implicit in the very notion of a prospective candidate,
and does not militate against
his becoming one from
the date of his application.
It was also urged for the appellant that the declaration was made nor to the constituency in the North
Arcot District but to the Central Committee at Madras,
and that
unless there was proof of holding out to the
electorate, the requirements of
section
79 (b)
were
not satisfied.
It may
be that the holding out which
is
conte;nplated by
that section
is
to the Constituency; but if it is the Central Committee that has to
decide who shall be adopted for election from the
concerned
constituency, any
declaration made to the
Committee is,
in effect,
addressed to the constituency
through
its
accredited
representative.
The
question
when
a candidature
commences is,
as
has,
been
held over and over again, one of fact, and a
decision of the Tribunal on that question is not liable
to be reviewed
by this Court in special appeal.
In the
present case,
the Tribunal has,
in a
well-considered
judgment, formulated the correct
principles to be applied in determining when a candidature commences,
examined
the evidence in the light of those principles,
and recorded
a finding that the appellant was a prospective candidate when he made the
payment of
2 S.C.R.
SUPREME COURT REPORTS
475
Rs. 500 on 12-9-1951, and we do. not find any ground
for differing from it.
Then, there is the payment of Rs. 500 made to the
North
Arcot
District
Congress
Committee
on
23-9-1951.
The contention of Mr. Chatterjee with ref-
.crence to this payment is that unlike
the payment
dated 12-9-1951,
this was
not spent for purposes of
dection but
was donation made to the Committee out
of μi-iilanthropic
motives.
It has
been
frequently
pointed
out
that
while
it is meritorious to make a
<lonation for charitable
purposes,
if that is made at
the time or on the eve of an election, it is open to the
charge that its real object was to induce the electors
to vote in favour
of
the particular candidate,,
and
that it should therefore be treated as election expense.
In The Wigan Case(1), Bowen, J. observed :
" ...... I wish
to
answer the suggestion that this
was merely charity.
Charity at election
times ought
to be kept
by politicians
in
the background ...... In
truth, I think, it will generally be found that the feeling
which distributes
relief to the poor at election
time, though those
who are the distributors may not
be aware of it, is really not charity, but party feeling
following in the steps of charity, wearing the dress of
charity,
and mimicking her gait".
In The Kingston Case(2), Ridley, J. said:
"Now assume for the moment that a man forms
a design, which at the time is in prospect, for that is
the point; yet if circumstances alter, and an election
becomes imminent, he will go on with that design at
his risk".
ft would again be a question of fact whether the
payment of Rs. 500 by the appellant on 23-9-1951 was
a pure act of charity or was expense incurred for
election purposes.
It was admitted
by the Secretary
of the North Arcot District Congress
Committee that
it was usual for the Tamil Nad Congress Committee
to consult the local Committee in the matter of adoption of candidates, and that at the time the payment
\_'\'as made, it was known
that the appellant had applied to be adopted by the Congress. Exhibit A(7)
(') 4 0.'M & H. I.
(1) 6 O'M. & H. 374.
1955
S. Khader Sheriff
v.
Munnuswami
GOUflder and other
V enkatarama
i{yyar J.
1955
S. Khader Sheriff
v.
MunnuJwami
Gowukr and oJh~rs
Vtnkatarama
A~J!Yar ].
476
SUPREME COURT REPORTS
fl955}
which 1s a statement of receipts and payments of the
North
Arcot
District Congress Committee for the
period 24-9-1951
to 24-5-1952 shows that the Committee started with
an opening balance of Rs. 7-12-2,
and that various amounts were collected including
the sum of Rs. 500 paid by the appellant and utilised
for election expenses.
The Tribunal held on a consideration
of
these facts
that the payment in question
could not be regarded as innocent, and "not motivated
by the desire to obtain the recommendations of the
North Arcot District Congress Committee for candidature of the first respondent".
No ground has bcCll
shown for differing from this conclusion.
It was finally contended for the appellant that the
two payments dated
12-9-1951
and 23-9-1951
could
not be said to be expenses incurred on account of the
conduct and management of an election, and reliance
was placed on the decision in The Kennington Case('),
where it was held that payments made for the running of a newspaper started for supporting a candidate
were
not expenses incurred in · the
conduct and
management of an election.
The facts of the present
case have no resemblance to those found in that case,
and the · following comment on
that decision in Parker's
Election Agent and Returning Officer, Fifth
Edition, page 241 is instructive:
"But this decision
could
not
be safely followed
except where the facts are precisely similar".
On the findings recorded above, the expenses incurred by the appellant
come to Rs. 8,06.3, and the
corrupt practice
specified in section 123(7) has been
committed.
The election was therefore rightly set
aside under section 100(2) (b) of Act No. XLIII of
1951.
(2) It is next contended for the appellant that the
Tribunal was in error in recording as part of the order
a finding that by reason of the contravention of section 123(7), the appellant had become subject to the
disqualification specified in section
140, without giving notice to him as required by the proviso to section
(') 4 0' M. & H. 93.
2S.C.R.
SUPREME COURT RE.l'ORTS
477
91. The question whether a party to an election pet~
tion is entitled to a notice under the proviso in respect
of the very charges w!Hch were the subject-matter of
enquiry in the petition itself, has been considered by
this Court in Civil Appeal No. 21 of 1955, and it has
been held therein that if the party had opportunity
given to him in the hearing of the petition to meet the
very charge in respect of which a finding is to be re-
-corded under section 99( 1) (a), then he is not entitled
to a further notice in respect of
the same matter,
under
the proviso.
In the
present case,
the finding
under section
99(1)(a) relates
to the very payments
which were the subject-matter of enquiry in the election petition,
and therefore no notice was required to
be given to the appellant under
the pro·1iso. This
objection also fails, and the appeal must accordingly
be dismissed.
The respondent has stated through his counsel Shri
Naunit Lal that he does not propose to contest the
appeal.
There will accordingly be
no order as to
costs.
Appeal dismissed.
CHATTANATHA KARAYALAR
"·
RAMACf{A.NDRA
IYER
AND
ANOTHER.
{V1v1AN BnsE, VENKATARAMA AYYAR and B. P. SINHA JJ.]
Election Dispute-Returned candidate alleged to be disqualified
for being chosen as a member-Hindu fathe1· entering into Government
contt·act, if does so en behalf of the undivided family-Presumption
ef Hindu Law-Finding of benami, if liable to be intei'fered with in
Special appeal-Representation of the People Act (XL!Il of 1951),
SS. 7(d), 9(2}.
There is no presumption in Hindu Law that a business standing in the name of a member of the Hindu joint family is joint
family business, even when that member is the manager or the father.
There is this difference between the position of the father starting new business and a mere manager doing so that while the
debts r.ontracted by the father in such business are binding on the
sons on the theory of a son's pious obligation
to pay his father's
debt, those contracted by the latter are not binding on the other
1955
S. Khat/er S/tn'il
v.
,
.\funnruwami
Gounder and others
V enkatarama
AY,var J.
1955
S1ptemb11 19