# State of Travancore~ Cochin and Others v. The Bombay Co. Ltd. Patanjali Sastri C. /

- **Citation:** [1952] 1 S.C.R. 1122
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeal No. 114 of 1951
- **Bench:** Mehr Chand Mahajan, CHANDRASEKHARA ArYAR, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-travancore-cochin-and-others-v-the-bombay-co-ltd-patanjali-sastri-c-214
- **Pages:** 12

## Headnote

U.
P.
District Boards Act (X of 1922), ss.
71, 90-District
Board-Dismissal
of
secretary-Resolutions
far
dismissal,
and
suspension pending decision of appeal to Government-Validity of
suspension.
Section 71 of the U. P. District Boards Act, 1922, as
amend~
cd in 1933 provided that a resolution of the Board for the
dis~
missal of its secretary shall not take effect until the period
of
one month has expired or until the State Government have
passed orders on any appeal preferred by him.
A District
Board
passed a resolution for dismissal of its secretary and also for his
suspension till the matter oi his
dismissai
was
deci<led
unde:r
section 71
of the Act on an appeal if any
preferred by
the
secretary : H'lld, that under section 90 of the
Act
a
secretary
could be suspended only as a
punishment or pending inquiry or
•
(
•
_)
S.C.R.
SUPREME COURT REPORTS
1123
pending the orders of any . authority whose
sanction is necessary
for
his
dismissal.
The words "pending the orders of any
authonty whose sanction is necessary for his dismissal" could
not appropriately cover the_ case of a suspension like the present
one and the resolution for suspension was therefore ultra vircs.
·
Heid furtlier, that since the Board was created by statute,
and its powers of dismissal and suspension are defined and
circumscribed by sections 71 and 90 of the Act it would not be
legitimate to have resort to general or impliQC] powers under the
law of master and servant or under section 16 of the U.P.
C.eneral
Clauses Act ; and even
under section 16 of that Act
powers which are vested in an authority to suspend or dismiss
any person appointed,
are to be operative only "unless a differ.
oo.t intention appears" and such a different int.ention is to be
found in sections 71 and 90 of the Act which codify the powers
of dismissal and suspension vested in the Board.
CIVIL
APPELLATE
JuRISDICTION : Civil Appeal No.
114 of 1951.
Appeal from the Judgment and Decree
dated
the
5th September, 1947, of the High Court of Judicature
at Allahabad
(Waliullah
and Sapru JJ.)
in First
Appeal No. 516 of 1942 arising out of Judgment and
Decree dated the 3rd October, 1942, of the Court of the
Civil Judge of Shahjahanpur in Original Suit No. 1()
of 1941.
Achhru Ram (N. C. Sen, with him) for the appel~
Ian ts.
C. K. Daphtary (K. B. Asthana, with him) for the
respondents.
1952. October 20. The Judgment of the Court was
delivered by
BHAGWATI J.-This is an appeal by the heirs
and
legal representatives of the deceased
plaintiff
against
the decree of the High Court qf Judicature at Allaha·
bad allowing the appeal of the defendants against · the
decree passed by the Court of the Civil Judge of Shah-
~
jahanpur in favour of the plaintiff allowing the plain·
· tiff's claim in part.
One Kailashi Nath Kapoor, the plaintiff, was employed by the District
Board of
Shahjahanpur,
the
defendants, as their Secretary in the year 1924.
He
17-10 S. C. India 71
•1952
Shrimati
Hira Devi
and Others
v.
District Board,
Shahjahanpur.
Bhogwati /.
1952
SArimati
Hira Deui
ttnd Others
v.
District Board,
Shahiahanpur.
Bhagwati /,
1124
SUPREME COURT REPORTS
[1952]
was also entrusted in 1929 with the additional duties
of doing assessment work
for the defendants.
The
work done by the plaintiff did not find favour with
some members of the Board and on the 9th November.
1939, six members of the Board tabled · a
resolution
asking the Chairman to convene a special meeting of
the Board to consider a resolution for the dismissal of
the plaintiff.
A special meeting of
the
Board
was
convened on the 17th December, 1939. Twelve charges
were framed against the plaintiff and he was required
to furnish his answers to them.
A special
meeting
.of
the
Board
was
thereafter
convened
on
the
20th
January,
1940.
The
resolution
for
the dismissal of the plaintiff was on the agenda but
the
meeting had to be adjourned for want of quorum to
the 29th January, 1940.
At the adjourned meeting
of
the 29th January, 1940, twenty-five out of the twentysev

## Text

1952
State of
Travancore~
Cochin
and Others
v.
The Bombay
Co. Ltd.
Patanjali
Sastri C. /.
1952
Oct. 20.
1122
SUPREME COURT REPORTS
[19521
In the result,
agreeing with the conclusion of the
High Court, though on different grounds,
we dismiss
the appeals with costs.
Appeals dismissed.
Agent for the appellants : P. A. Mehta.
Agent for the respondent in C. A. No. 25 of 52 :
M. S. K. Sastri.
Agent for the respondent in C. A. No. 28 of
52 :
Sardar Bahadur.
Agent for the respondent in C. A. No. 29 of 52 :
V. P. K. Nambiyar.
.
Agent for
the Interveners (Union of India, State
of Bombay, State of Madras,
State of Hyderabad,
State of Punjab, State of Mysore, and State of Orissa) :
P. A. Mehta.
•
~
Agent for the State of Uttar Pradesh : C. P. Lal.
SHRIMA TI HIRA DEVI AND OTHERS
v.
DISTRICT BOARD, SHAHJAHANPUR
[MEHR CHAND MAHAJAN, CHANDRASEKHARA
ArYAR and BHAGWATI JJ.)
U.
P.
District Boards Act (X of 1922), ss.
71, 90-District
Board-Dismissal
of
secretary-Resolutions
far
dismissal,
and
suspension pending decision of appeal to Government-Validity of
suspension.
Section 71 of the U. P. District Boards Act, 1922, as
amend~
cd in 1933 provided that a resolution of the Board for the
dis~
missal of its secretary shall not take effect until the period
of
one month has expired or until the State Government have
passed orders on any appeal preferred by him.
A District
Board
passed a resolution for dismissal of its secretary and also for his
suspension till the matter oi his
dismissai
was
deci<led
unde:r
section 71
of the Act on an appeal if any
preferred by
the
secretary : H'lld, that under section 90 of the
Act
a
secretary
could be suspended only as a
punishment or pending inquiry or
•
(
•
_)
S.C.R.
SUPREME COURT REPORTS
1123
pending the orders of any . authority whose
sanction is necessary
for
his
dismissal.
The words "pending the orders of any
authonty whose sanction is necessary for his dismissal" could
not appropriately cover the_ case of a suspension like the present
one and the resolution for suspension was therefore ultra vircs.
·
Heid furtlier, that since the Board was created by statute,
and its powers of dismissal and suspension are defined and
circumscribed by sections 71 and 90 of the Act it would not be
legitimate to have resort to general or impliQC] powers under the
law of master and servant or under section 16 of the U.P.
C.eneral
Clauses Act ; and even
under section 16 of that Act
powers which are vested in an authority to suspend or dismiss
any person appointed,
are to be operative only "unless a differ.
oo.t intention appears" and such a different int.ention is to be
found in sections 71 and 90 of the Act which codify the powers
of dismissal and suspension vested in the Board.
CIVIL
APPELLATE
JuRISDICTION : Civil Appeal No.
114 of 1951.
Appeal from the Judgment and Decree
dated
the
5th September, 1947, of the High Court of Judicature
at Allahabad
(Waliullah
and Sapru JJ.)
in First
Appeal No. 516 of 1942 arising out of Judgment and
Decree dated the 3rd October, 1942, of the Court of the
Civil Judge of Shahjahanpur in Original Suit No. 1()
of 1941.
Achhru Ram (N. C. Sen, with him) for the appel~
Ian ts.
C. K. Daphtary (K. B. Asthana, with him) for the
respondents.
1952. October 20. The Judgment of the Court was
delivered by
BHAGWATI J.-This is an appeal by the heirs
and
legal representatives of the deceased
plaintiff
against
the decree of the High Court qf Judicature at Allaha·
bad allowing the appeal of the defendants against · the
decree passed by the Court of the Civil Judge of Shah-
~
jahanpur in favour of the plaintiff allowing the plain·
· tiff's claim in part.
One Kailashi Nath Kapoor, the plaintiff, was employed by the District
Board of
Shahjahanpur,
the
defendants, as their Secretary in the year 1924.
He
17-10 S. C. India 71
•1952
Shrimati
Hira Devi
and Others
v.
District Board,
Shahjahanpur.
Bhogwati /.
1952
SArimati
Hira Deui
ttnd Others
v.
District Board,
Shahiahanpur.
Bhagwati /,
1124
SUPREME COURT REPORTS
[1952]
was also entrusted in 1929 with the additional duties
of doing assessment work
for the defendants.
The
work done by the plaintiff did not find favour with
some members of the Board and on the 9th November.
1939, six members of the Board tabled · a
resolution
asking the Chairman to convene a special meeting of
the Board to consider a resolution for the dismissal of
the plaintiff.
A special meeting of
the
Board
was
convened on the 17th December, 1939. Twelve charges
were framed against the plaintiff and he was required
to furnish his answers to them.
A special
meeting
.of
the
Board
was
thereafter
convened
on
the
20th
January,
1940.
The
resolution
for
the dismissal of the plaintiff was on the agenda but
the
meeting had to be adjourned for want of quorum to
the 29th January, 1940.
At the adjourned meeting
of
the 29th January, 1940, twenty-five out of the twentyseven
members
of
the Board
were present.
The
.. charges against the plaintiff were gone into and eleven
. out of the twelve charges
were held
proved.
Two
'resolutions were consequently passed by the Board at
this meeting, one being a resolution for his dismissal,
· and the other being a resolution for his suspension till
the matter of his dismissal was decided under Section 71
:of the U. P. District Boards Act, X of 1922, on an
appeal if any preferred by the plaintiff to the Government.
The
plaintiff
preferred
an
appeal to
the
'"Government
against the
resolution for his
dismissal
and
thi~ ~ppcal was dismissed by the Government on
· the 19th D~cember, 1940.
.
The plaintiff thereafter commenced in the Court of
(
the Civil Judge at Shahjahanpur the suit out of which
this appeal arises against the defendants for a declaration that the two resolutions passed by the Board on
· the 29th January, 1940, were illegal and ultra vire! of
of the Board and that he continued to be the Secretary
and Assessing Officer of the Board, for an miunction
restraining the Board from preventing him from dis-
~.A
charging his duties
as such Secretary and Asses.sing
\
Officer, for arrears of his salary with interest and contribution to his provident Fund and in the alternative
f
•
_)
S.C.R.
SUPREME COURT REPORTS
1125
for
damages
and
compensation
for
illegal
dismissal and suspension and for costs. The defendents
contended that the
sai<l
resolutions
were
valid and
binding on the plaintiff and that the plaintiff was not
entitled to any relief as claimed.
The learned trial judge held that the two resolutions
passed by the
Board on the 29th January, 1940, were
properly
passed and that there
was
no irregularity
in the procedure. He held that the resolution for
dismissal of the plaintiff was valid and binding on the
plaintiff but the
resolution for
suspension was not
legal.
Jn the result he
decreed the . plaintiff's claim
for arrears of salary, and the contribution towards the
provident fund ·· against the defendants for the period
of suspension and awarded to the plaintiff a sum of
Rs. 6,629-4-0 with proportionate costs, the rest of the
. plaintiff's
claim· was
dismissed.
The
defendants
appealed to the High. Court against this decree and the
plaintiff filed cross-objections in regard to , his
claim
which had been disallowed. The plaintiff died during
· the pendency of the appeal and his
heirs and
legal
representatives, being his widow and his
four
sons,
were brought on the record. The High Court concurred
with the trial court in the finding that there was no
irregularity, impropriety or illegality il'l the
procedure
followed and the steps taken before the meeting or at
the meeting of the Board when the
two
resolutions
were considered and
passed.
It
however disagreed
with the conclusion reached by the trial Court that the
resolution for suspension was ultra Vires the Board. It
held that the resolution for suspension also was valid
and binding on the plaintiff and thus dismissed the
plaintiff's suit
with
costs
throughout.
The
crossobjections of the plaintiff were
of course dismissed
with costs.
The heirs · and legal representatives of the
plaintiff obtained leave to appeal to the Federal Court
against this decision of the High Court and the appeal
was admitted on the 5th November, 1948.
Both· the Courts below having found that there was
no irregularity, impropriety or illegality
in
the
procedure followed and the . steps taken
when
the
two
· 1952
Shrimatt
Hira Devi
and Othcfs
v.
District Board,
Shahjahanpur.
Bhagwati /.
'1952
Shrimati
Hira Devi
«nd Others
v.
District Board,
Shahiahanpur.
Bhagwati /.
'1126
. SUPREME COURT REPORTS
[1952]
resolutions in question were passed by the Board the r
only question that survived for consideration by this
Court was whether the resolution for suspension of the
plaintiff was valid and binding on the plaintiff or in
)
other words whether it was competent to the Board to
pass the resolution for the suspension of the plaintiff
after it had passed the resolution
for
his
dismissal
<".
under section 71 of the Act.
\
Section 71 of the Act provides for the dismissal and
punishment of the secretary :
"A board may by special resolution punish or dis-
{
. miss its i;ecretary :
Provided, firstly, that such resolution is passed by
a vote of not less than two-tllirds of the total number
of members of the board for the time being :
Provided, secondly, that the secretary of a board
shall have a right of appeal to the State Government
against such resolution within one month
from
the
date of the communication of the resolution to
him,
and that the resolution shall not take effect until the
1-_
period of one month has expired or until the State
Government have passed orders on any
appeal
preferred by him."
It will be relevant at this stage to note that
this
section 71 was amended by U. P. Act I of 1933. Section 71 as it originally stood ran thus :
"A board may by special
resolution
punish
or
dismiss its secretary provided,
(a) that such a resolution is passed by a vote of:
not less than two-thirds of the total number of members of the board for the time being, or (b) that it is \._
passed by a vote of not less than one-half of the total
number of members and is 'sanctioned by the Local
Government'."
·It may be noted that in the
original section
71
provision was made for the
sanction of
the Local
Government in certain cases. No such provision is to i.'
be found in the amended section 71 of the Act. The l
resolution according to the amended section 71 is to
.be passed by a vote of not less than two-tllirds of the
S.C.R.
SUPREME COURT REPORTS
1127
1 total number of members of the Board and such a
resolution is not to take effect until the period of one
month has expired within which
the
secretary
can
(
exercise his right of appeal or until
the Government
have passed orders on the appeal if any preferred by
him.
There is no question of the sanction
of
the
Local Government to any resolution for dismissal, the
~ only provision being that the resolution
is
to
take
effecv after the expiration of the period of one month
or after the Government have passed
orders on
the
, appeal if any preferred by the secretary within that
period of one month.
Once that period of one month
expires without the secretary preferring any appeal
against the resolution of the Board or the Government passes final orders on
the
appeal preferred by
him, the resolution takes effect without anything more
in the nature of a sanction by the Government.
The power of suspension is conferred and regulated
in section 90 of the Act :-
" ( 1) Suspension may be of two kinds:
(a) suspension as a punishment, and
(b) suspension pending inquiry or orders.
(2) Where a general power to punish is conferred by
this Act, it shall be deemed to include a power to suspend as a punishment for a period not exceeding three
months.
(3) Where a power of dismissal, whether subject to
the sanction of any other authority or
not,
is conferred by this Act, it shall be deemed to include a
power to suspend
any
person
against
whom
the
power of dismissal might be exercised,
pending en-
·quiry into his
qmduct
or
pending
the
orders of
any authority whose
sanction
is
necessary
for
his
dismissal.
( 4) Where suspension is ordered pending inquiry or
orders, and the officer suspended is ultimately restored,
\
it shall be at the discretion of the authority ordering
, his suspension whether he shall get any, and, if so,
~ what, allowance during the period of suspension; but
in the absence of any order to the contrary he shall be
1952
Shrimati
Hira Devi
and. Othe1·s
v.
District Board,
Shahjahanpur,
Bhagwati ].
1952'
Shn"mati
Hira rJcvi
and Oth<rs
~
District B0ard,
Shahiahanpur.
Bhagwati /.
1128
SUPREME COURT REPORTS
[1952 J
entitled to the full remuneration which he would have f
received but for such suspension."
The suspension which has been thus provided for
is of two categories, ( 1) suspension as a punishment
and (2) suspension pending enquiry or orders.
In the
case of ·a suspension falling within the latter, categorv
the only power of . suspension
which is provided is
that of
suspending any
person
against whom
the
power of dismissal might be exercised pending enquiry
into Ills conduct or pending the orders o£ any authority
whose sanction is necessary for Ills dismissal.
The
power of suspension pending enquiry into the conduct
of the perSl)n can only be exercised if an enquiry
against him has been started and before any order is
made for Ills dismissal as a result of such enquiry.
The power of suspension pending . the orders of the
authority whose sanction is necessary for Ills dismissal
can similarly be exercised provided , the order of dismissal is made hilt that dismissal could be
effective
only after the orders· of the authority whose sanction
is needed for effectuating the same. The section does
not provide for any other case where as on the facts
before us the order of dismissal does not require the
sanction of any authority but has got to await either
the expiry of a particular period after such order of
dismissal has · been made or the
result of an appeal
which may be preferred to the Government within the
period prescribed in that behalf. A decision of an
authority to which an appeal is
provided
is
not
the
same thing as a sanction by the authority.
A perusal
of sub-section ( 4) of section 90 make.< this position
quite clear.
The authority ordering the suspension is
vested
with
the
discretion
to
d<>termine
whether
the officer suspended would get
any or if so what
allowance during the period of suspension where suspension is ordered pending enquiry or orders and the
officer suspended is ultimately restored.
There is no
i
f
I.
provision
for
any
allowance
where
the
officer f
having been idismissled
is also
suspended for
the
,
period which has of necessity
to expire
before his
l;
appi:al is time-barred or before the Government passes
(
.\
S.C.R.
SUPREME COURT REPORTS
1129
orders on the appeal if any pref erred by him within
the prescribed period. Such a case is not at all proVided for in sub-section 4 of section 90 and the officer
so suspended would be without any remedy whatever
and would not be able to get any allowance at all from
the a'uthority ordering his suspension during such
period of suspension.
It is necessary to bear in mind the provisions of
these sections 71 and 90 of the Act in order to determine whether it was competent t!O the Board to pass a
resolution for suspension of the plaintiff after . it had
passed the resolution for his dismissal on the 29th
January, 1940.
On a construction of these sections 71 and 90 of the
Act the trial Court came to the conclusion that the
provisions of section 90 of the Act were exhaustive,
that no other category of suspension apart from those
specified
co~ld be ordered and that therefore the resolution for suspension of the plaintiff was ultra vires
the Board.
The High Court in appeal realised the
difficulty of the position. It came to ' the conclusion
that section 90 as it stood was in close conformity
with . the provisions of the old section 71 of the Act
which provided for the resolutipn
for dismissal passed
by a vote of no:t less than one-half of the total number
of members being required to be sanctioned by the
Local Government.
The sanction was expressly
provided
there.
But when
that section
came
to be
amended by the U.P. Act I of 1933, the provision
for sanction was deleted and it provided for the resolution
not taking effect until
the
period
of
one
month had expired within which the secretary could
exercise his. right of appeal or until the Government
had passed orders on the appeal if any preferred by
him. When this amendment was made in the old sec;.
lion 71 of the Act of the provision made in section 90 in
regard to the power of suspension was lost sight of
and no corresponding amendment was made in section 90, sub-section (1) (b), sub-section (3) or subsection
( 4)
which would bring the provisions of
145
1952
Slirimati
Hira D~vi
and Othe1·s
v.
District Board,
.Shahjahanpur.
Bkagwati /. ·
1952
Snrimati
Hira D~vi
""d Others
v.
District Board,
Shahjahanpur.
Bhagwati /,
1130
SUPREME COURT REPORTS
[1952]
sectian 90 in conformity with the amended section 71
of the Act. The High Court was therefore at pains to
place what it called a liberal construction on the provisions of section 71 and section 90 of the Act trying
to read in the power of suspension- provided in section 90 also a power of suspension during the period
that the secretary preferred an appeal to the Government
against the order of his dismissal and the
Government passed orders on such appeal.
Apart from placing this so-called liberal construction on the expression "the orders of any authority.
whose sanction
is
necessary"
in section
90
subsection 3, the High Court also brought to its aid
the provisions of Section 16 of the U. P. General
Clauses Act of 1904 which provides that "unless a
different
intention
appears the authority
having:
power to make the appointment shall also have power
to suspend or dismiss any person appointed by it in
exercise of that power". It came to the conclusion.
that nothing in the terms of section 71 or section 90
of the Act controlled or negatived an intention to
sustain the general power of suspension, i.e., suspension pending orders on an appeal. The High Court
thus justified the resolution for the suspenslon of
the
plaintiff
passed
by
the Board on the
29th
January, 1940.
We are afraid we cannot agree with this line of
reasoning adopted by the High Court. The defendants
were a Board created by statute and were invested
with powers which of necessity had to be found within
the four corners of the statute itself.
The powers of
dismissal and · suspension
given to the Board
are
defined and circumscribed by the provisions of sections 71 and 90 of the Act and have to be culled out
from the express provisions of those sections.
When
express powers have been given to the Board under
the terms of these sections it would not be legitimate
to have resort to general or implied powers under the
law of master and servant or under section 16 of the
U.P. General Clauses Act. Even under the terms of
section 16 of that Act, the powers which are vested
)
I.
'
i
J
-
I
I
(
:S.C.R..
SUPREME COURT REPORTS
1131
in · the authority to suspend or dismiss any person
appointed are to be operative only "unless a different
intention . appears" and such different intention is
to
be folJ.Ild in the enactment of sections 71 and 90 of
the Act which codify the powers of dismissal and
suspension vested in the Board. It would be an unwarranted extension
of the
powers
of
suspension
vested in the Board to read, as the High Court
purported to do, the power of suspension of the type
1n question into the words "the orders of any author-
:ity whose sanction is necessary".
It was unfortunate
that when the Legislature came to amend the old
·section 71 of the Act it forgot to amend section 90 in
·conformity with the amendment of section 71.
But
this lacuna cannot be supplied by any such liberal
<:011struction as the High Court sought to put upon the
apressibn . "orders of any authority whose sanction is
necessary".
No doubt it is the duty of the court to
try to 4armonise the various provisions of an Act
passed by the Legislature.
But it is certainly not the
<iuty of the Court to stretch the words used by the
Legislature to fill in gaps or omissions in the provi-
.sions of an Act.
Reading the present section 71 of the Act along with
section 90 of the Act we are of the opinion that the
power of suspension of the nature purported to be
exercised by the Board in the case before us was not.
the power of suspension contemplated in section 90
-sub-section ( 3) of the Act. If the plaintiff allowed the
period ·of one month to expire without preferring an
appeal against the resolution to the Government or if
the Government passed orders dismissing his appeal,
if any, the resolution for his dismissal would become
•effective without any sanction of the Government.
The words used therefore in section 90, sub-section (3)
"pending the ordern of any authority whose
sanction
is necessary for his dismlssal" are inappropriate to the
present facts and could not cover the case of a suspension of the nature which was resorted to by the Board
on the 29th January, 1940.
We are therefore of the
view
that the resolution for suspension which was
1952
Shrimatf
Hira Devi
and Others
v.
District Board,
Shahjahanpur.
Bhagwati /.
1952
Shrimati
Hira Devi
and Others
v.
Districi Board,
Shahiahanpur.
Bhagw•ti ].
1132
SUPREME COURT REPORTS
, [19521',
passed on the 29th January, 1940, was ultra vires the
powers of the Board.
We have accordingly come to the conclusion that the·
decision reached by the High Court that the resolution
for suspension which was passed by the Board on the
29th January, 1940, was valid and bindiog on the
plaintiff was erroneous and that the conclusion reached
by the trial Court was correct. The learned SolicitorGeneral appearing for the defendants has however
informed us that the sum of Rs. 6,629-4.0 and the
proportionate costs which were awarded by the trial
Court to the plaintiff have already been paid to the
plaintiff.
Nothing therefore remains to be recovered by
the . heirs and legal representatives of the plaintiff
even on the basis that the decree of the trial Court is
restored as a result of this judgment of ours ..
The only thing which therefore· survives is· the
question of the costs of this. appeal. The trial Court
had
already awarded to the plaintiff proportionatecosts.
The High Court in reversing ·the. judgment of
the trial Court disrnis.<ed the plaintiff's suit with costs.
throughout including the costs of the cross-objections
which were filed by the plaintiff. The heirs and legal'
representatives of the plaintiff filed the present appeal
in regard to the whole claim of the plaintiff as laid in
the plaint.
That claim could not be sustained beforeus by the heirs and
legal
representatives
of
the
plaintiff
and they only succeeded before us in regard
to the claim of the plaintiff which had been allowed
by the trial Court. If an order for proportionate costs.
of this appeal were made it would certainly work to
the prejudice of the heirs and legal representatives of
the plaintiff.
We are not disturbiog the order which
had been made by t11e High Court in regard to tliecosts of t11e appeal before it.
No time was taken up
before us in arguing the appeal on oilier points except
the one in regard to the resolution for the suspension
of tlie plaintiff being ultra vires and we think that
under the circumstances of tlie case tlie proper order
to pass in regard to tlie costs of this appeal before us
should be tliat each party should bear its own costs.
'
,_
.,
S.C.R.
SUPREME COURT REPORTS
1133
The only order which we need pass in this appeal
before us under the circumstances i"' that the appeal
ft; allowed, the decree of the trial court is restored,
and each party do bear and pay. its own costs of
this appeal.
Appeal allowed.
Agent for the appellants: C. P. Lal.
Agent for the respondent : S. S. Shukla.
MOHD. AMIN AND OTHERS
v.
VAKIL AHMED AND OTHERS.
[MEHER CHAND MAHAJAN, CHANDRASEKHARA
A1YAR and BHAGWATI JJ.]
Mahomedan Law-Guardianshi[>-De facto guardian-Powers of
alienation-Benefit to minor, whether material-Whether transaction can be upheld as family arrangement-marriage--Co-habitation
-Presumption of valid marriage.
Under Mahomedan law a person who has charge of the person
or property of a minor without being his legal guardian, i.e., a
de facto guardian, has no power to convey to another any
right
or interest in immoveable property which
the
transferee
can
enforce against the minor.
The question
whether the transaction
has resulted in a benefit to the minor is immaterial in such cases.
Where disputes arose, relating to succession to the estate of a
deceased Mahomedan between his 3 sons, one
of
whom
was
a
minor, and other relations, and a deed of settlement embodying
an agreement in regard to the distribution of the properties
belonging to the estate was executed by and between the parties
the eldest son acting as guardian for and on behalf of the minor
son :
l-I eld, that the deed was not binding on the minor son as
his brother was not his legal guardian; as the deed was
void it
cannot be held as valid merely
because it embodied a family
arrangement ; and the deed was void not only qua the
minor,
but with regard to all the parties including those who were
sui
juris.
lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed
Keramatullah Miah v. Keramatulla
(A.LR.
1919 Cal. 218)
and
Ameer Hasan v. Md. Ejay Hussain
(A.I.R. 1929 Oudh 134)
commented upon.
1952
Shrimati
Hil'a Devi
and Others
v.
District Board,
Shahjahanpur •.
Bhagwati /.
1952
Oct. 22.