Input:
ivil Appeal No. 2413 of 1989.
From the Judgment and Order dated 3.10.1988/12.10.1988 of the Central Administrative Tribunal, Hyderabad in O.A. No. 307 of 1987.
Anil Dev Singh, B. Parthasarthy, Hemant Sharma and C.V. Subba Rao for the Appellants.
Mrs. Kitty Kumaramangalam, Ms. Vijayalaxmi, Kailash Vasdev, P. Parmeshwaran and A.T.M. Sampath for the Respond ent.
The Judgment of the Court was delivered by AHMADI, J.
The Central Administrative Tribunal, Hydera bad by its order dated 3rd October, 1988 held that the Divisional Railway Manager (BG) SC Railway, Secunderabad was not competent to pass the impugned order dated 25th April, 1986 retiring the railway servant Shaik Ali from service under Rule 2046(h)(ii) of Indian Railway Establishment Code, Volume II Pension Rules (hereinafter called 'the Code ').
The Union of India feeling aggrieved by the said order has come in appeal to this Court by special leave.
The respondent Shaik Ali joined the erstwhile Nizam State Railway Service as Pointsman in 1953 or thereabouts and secured promotions from time to time in the course of his service, the last promotion being as Yard Master in the revised scale of Rs.550 750 on 31st January, 1986.
The facts show that he was on duty between 14.00 and 22.00 hours on 23rd February, 1986 at Sanatnagar Station.
As his reliever did not turn up at 23.00 hours, he was compelled to perform 459 duty from 22.00 hours to 08.00 hours of 24th February, 1986.
At about 23.15 hours, he permitted the staff working under him to have their meals and report for duty as soon as possible.
As the staff members did not return to duty within a reasonable time he went towards the cabin where they usually took their meals.
At that time the Divisional Safety Officer, A. Bharat Bhushan, came down from the cabin and inquired of the respondent 's identity.
The respondent coun tered by inquiring about the identity of the said officer.
It is the respondent 's say that as he did not know the said officer he asked for his identity before disclosing his identity.
The officer was annoyed at the behaviour of the respondent and threatened him with dire consequences.
It is the respondent 's case that immediately thereafter he was placed under suspension.
When he went to meet the officer at the suggestion of the Station Superintendent, the said officer behaved rudely and refused to listen to his explana tion.
By a subsequent order dated 19th March, 1986, the respondent was kept under further suspension w.e.f. 4th March, 1986.
He was not charge sheeted nor was any inquiry held against him but he was visited with the order of prema ture retirement dated 25th April, 1986, the relevant part whereof reads as under: "Whereas the Divisional Railway Manager (BG), Secunderabad is of the opinion that it is in the public interest to do so.
Now therefore, in exercise of the powers conferred by Clause (h)(ii) of Rule 2046 of Indian Railway Establishment Code, Volume II Pension Rules, the Divisional Railway Manager (BG), Secunderabad hereby retires Shri Shaik Ali, Assistant Ward Master, Sanatnagar with immediate effect that he having already completed 30 years of qualify ing service.
It was further directed that the respondent should be paid a sum equivalent to the amount of his pay plus allowances for a period of three months in lieu of three months notice calculated at the rate at which he was drawing salary imme diately before his retirement.
The respondent challenged this order of premature retirement by preferring an applica tion under Section 19 of the .
The Central Administrative Tribunal after reading the relevant Rule 2046(h)(ii) with Para 620(ii) of the Railway Pension Manual came to the conclusion that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order.
In taking this view the Tribunal relied on an earlier 460 decision of the Full Bench in AISLJ wherein it held that the highest authority among_ the appointing authorities alone was competent to impose any of the punish ments specified in Article 311 of the Constitution.
In this view that the Tribunal took, the Tribunal set aside the impugned order of premature retirement dated 25th April, 1986.
It is against the said order that the Union of India has preferred this appeal.
Under Rule 2046(a) of the Code ordinarily every railway servant would retire on the day he attains the age of 58 years.
However, notwithstanding the said provision, Rule 2046(h) entitles the appointing authority to retire him before he reaches the age of superannuation.
Rule 2046(h), insofar as it is relevant for our purposes, reads as under: "2046(h).
Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months in writ ing or three months ' pay and allowances in lieu of such notice (i) if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years.
(ii) in any other case after he has attained the age of fiftyfive years.
" Since the respondent was indisputably in Class III service at the time the impugned order came to be made his case was governed by the second clause of Rule 2046(h).
The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years.
The re spondent 's contention was that he could not be prematurely retired under clause (ii) of Rule 2046(h) since he had not attained the age of fifty five years on the date of the impugned order.
According to him he was running 54th year on that date.
That obviously took his case out of the purview of the said rule.
Realising this difficulty an attempt was made by the department to fall back on paragraph 620(ii) of the Railway Pension Manual which reads as under: 461 "620(ii).
The authority competent to remove the railway servant from service may also require him to retire any time after he has completed thirty years ' qualifying service provided that the authority shall give in this behalf, a notice in writing to the railway servant, at least three months before the date on which he is required to retire or three month 's pay and allowances in lieu of such notice.
" Reliance was also placed on the decision of this Court in Union of India vs R. Narasimhan, ; in support of the contention that a railway servant governed by the Railway Pension Manual may be prematurely retired by 'the authority competent to remove him from service ' on his completing thirty years of qualifying service.
Under this rule, power is conferred on the authority competent to remove him from service to retire a railway servant who has completed thirty years of quarrying service regardless of his age.
The Tribunal took the view that although Rule 2046(h)(ii) would not be attracted in the absence of evi dence that the incumbent had attained the age of fifty five years, the department would be entitled to rely on para 620(ii) to support the order if it can show that the officer who passed the order was competent to do s0 under the said paragraph.
The Tribunal was however, of the opinion that since the power under paragraph 620(ii) could be exercised only by the authority competent to remove the railway serv ant from service, the Divisional Railway Manager not being such authority was not competent to pass the impugned order and hence the order was clearly void and inoperative in law.
In taking this view, the Tribunal relied on an earlier Full Bench decision referred to above.
We were told that as the said Full Bench decision of the Tribunal was under scrutiny by this Court, this Civil Appeal should be tagged on with similar matters pending in this Court.
However, the learned counsel for the respondent employee submitted that it was not necessary to tag on this matter with other matters arising out of the Tribunal 's Full Bench decision since in the instant case she proposed to support the Tribunal 's order on the twin grounds (i) that paragraph 620(ii) was ultra vires Article 14 of the Constitution and (ii) that the impugned order was punitive in nature and could not have been passed without a proper enquiry.
Insofar as the first contention is concerned she placed reliance on this Court 's decision in Senior Superintendent of Post Office & Ors.
vs Izhar Hussain; , wherein a similar Rule 2(2) of the Liberalised Pension Rules, 1950 was struck down as offending Article 14 of the Constitution.
So far as the second limb of her submission is concerned she stated that the respondent had been promoted to the post of Yard Master on 31st 462 January, 1986 and hence there was no occasion to prematurely terminate his service by the impugned order.
In Izhar Hus sain 's case the Court was concerned with F.R. 56(j) and Rule 2(2) of the Pension Rules.
F.R. 56(j) is substantially the same as Rule 2046(h)(ii) of the Code and Rule 2(2) is sub stantially the same as paragraph 620 with which we are concerned.
Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the same fate.
The learned counsel for the Railway Administration, realising this difficulty tried to support the impugned order on the ground that it was in public interest to retire the respondent.
Counsel for the respond ent contended that the railway administration has been shifting its stand, it first passed the impugned order under Rule 2046(h)(ii) of the Code and then relied on Rule 2(2) of the Pension Rules and when that was found to be of no as sistance switched over to paragraph 620(ii) of the Railway Pension Manual and is now trying to support the order on an extraneous ground which does not find a mention in the impugned order.
We think the criticism is well founded.
We are, therefore, of the view that apart from the competence of the Divisional Railway Manager to pass the order, the impugned order cannot be supported under paragraph 620(ii) for the aforesaid reason.
We next find that the learned counsel for the responden temployee is on terra firma so far as the second limb of her contention is concerned.
The facts clearly reveal that after the respondent joined the Nizam.
State Railway service in 1953 he secured promotions in due course and was appointed an Assistant Yard Master by an order dated 22nd August, 1984.
Thereafter, he was promoted to the next higher post of Yard Master by the order of 31st January, 1986.
While he was discharging duties as Yard Master On 24th February, 1986, the incident in question occurred which is said to be form ing the basis for the impunged order of 25th April, 1986.
We find from the facts that the Divisional Safety Officer was annoyed by the fact that the respondent had demanded that he disclose his identity before he (the respondent) did so.
The respondent was immediately placed under suspension and the said officer refused to listen to his explanation.
The suspension order was further extended by the order of 19th March, 1966.
This was followed by the impugned order of retirement dated 25th April, 1986.
The order was passed under Rule 2046(h)(ii) of the Code without verifying whether or not the incumbent had attained the age of fiftyfive years.
Even if the order was intended to be under Rule 2(2) of the Pension Rules, this requirement had to be satisfied.
The immediate and proximate reason for passing the impugned order was undoubtedly the unfortunate incident of 23/24th February, 1986.
But for that 463 incident there was no occasion for the Review Committee to examine the case of the respondent.
If the service record of the respondent was so bad as is now sought to be made out, he would not have been promoted to the post of Assistant Yard Master on 22nd August, 1984 and later to the post of Yard Master on 31st January, 1986.
We are, therefore, satis fied that the impugned order of premature retirement is punitive in nature and having been passed in flagrant viola tion of the principles of natural justice cannot be allowed to stand.
For the above reasons (different from the one on which the Tribunal rounded its decision), we are of the opinion that the ultimate order passed by the Tribunal does not require interference.
We, therefore, dismiss this appeal with costs.
Cost quantified at Rs.3,000.
Before we part we may observe that the concerned author ities will do well to amend Rule 2(2) of the Pension Rules and Paragraph 620(ii) referred to above so as to incorporate therein the requirement of public interest, that is to say, the premature retirement on completion of qualifying service of thirty years can be ordered in public interest only.
G.N. Appeal dismissed.

Output:
The respondent, employed as Yard Master in the South Central Railway, was on duty between 14.00 and 22.00 hours on 23rd February '86.
In the absence of a reliever, he was to continue his duty till 8.00 hours on 24th February '86.
He allowed his staff to take meals and since they did not return within a reasonable time, he went towards the cabin where the staff usually took their meals.
The Divisional Safety Officer who was coming down from the cabin, enquired of the respondent 's identity.
The respondent in turn asked for the identity of the said officer.
The officer was an noyed at this and threatened the respondent with dire conse quences.
Immediately thereafter the respondent was placed under suspension.
Further suspension followed and the re spondent was visited with the order of premature retirement under Rule 2046 of Indian Railway Establishment Code.
Respondent challenged the said order before the Central Administrative Tribunal and the Tribunal, relying on its decision in Shri Gafoor Mia & Ors.
vs Director, DMRL, AISLJ held that the Divisional Railway Manager who passed the impugned order of premature retirement was not competent to make such an order, and set aside the order.
This appeal, by special leave, is against the Tribunal 's order.
Though under sub clause (ii) of rule 2046(h), a class III employee cannot be retired prematurely after he has attained the age of 55 years, (unlike officers of class I & II) this clause was invoked in the case of respondent who was admittedly in class III service and did not attain the age of 55 years.
Appellant relied on para 620(ii) of the Railway Pension 457 Manual which gives the authority power to remove from serv ice a railway servant after he completed 30 years service.
On behalf of Respondent, it was contended that the appellant had been shifting its stand and trying to support the order on an extraneous ground which did not find a place in the order viz. unsatisfactory service record of the respondent; and there is no basis for it in view of the promotionS secured by the respondent, the last of which was just before the premature retirement.
Dismissing the appeal, this Court, HELD: 1.1 The order was passed under Rule 2046(h)(ii) of the Indian Railway Establishment Code without verifying whether or not the incumbent had attained the age of fifty five years.
Since the respondent was indisputably in class III service at the time the order came to be made, his case was governed by the second clause of Rule 2046(h).
The impugned order recites that the respondent had already completed thirty years of qualifying service but it does not state that he had attained the age of fifty five years.
According to the respondent he was running 54th year on that date.
That obviously took his case out of the purview of the said rule.
Even if the order was intended to he under Rule 2(2) of the Liberalised Pension Rules, 1950, this require ment had to be satisfied.
The immediate and proximate reason for passing the impugned order was undoubtedly the unfortu nate incident of 23/24th February, 1986.
BUt for that inci dent there was no occasion for the Review Committee to examine the case of the respondent.
If the service record of the respondent was so bad as is now sought to be made out, he would not have been promoted to the post of Asstt.
Yard Master an 22nd August, 1984 and later to the post of Yard Master on 31st January, 1986.
The order of premature retire ment is punitive in nature and having been passed in fla grant violation of the principles of natural justice, cannot be allowed to stand.
[426G H; 460F G; 463A B] 1.2 F.R. 56(j) of the Fundamental Rules is substantially the same as Rule 2046(h)(ii) of the Railway Establishment Code and Rule 2(2) of the Liberalised Pension Rules, 1950 is substantially the same as paragraph 620 of Railway Pension Manual.
Since Rule 2(2) has been struck down as violative of Article 14 of the Constitution, paragraph 620(ii) would meet the same fate.
Apart from the competence of the Divisional Railway Manager to pass the order, the order cannot also he supported under paragraph 620(ii).
[462B D] 458 Senior Superintendent of Post Office & Ors., vs Izhar Hussain, ; , relied on.
Union of India vs R. Narasimhan, ; , referred to.
The authorities concerned will do well to amend Rule 2(2) of the Liberalised Pension Rules, 1950, and paragraph 620(ii) of the Railway Pension Manual, so as to incorporate therein the requirement of public interest, making it clear that premature retirement on completion of qualifying serv ice of thirty years can be ordered in public interest only.
[463C D]


Input:
N: Civil Appeal No. 2114 (N) of 1972.
From the Judgment and decree dated 16.7.1971 of the Kerala High Court in Appeal Suit Nos. 183, 195 and 249 of 1966.
G. Viswanatha Iyer, P.K. Pillai and N. Sudhakaran for the Appellant.
T.S. Krishnamoorthy Iyer, T.S. Padmanabhan, T.T. Kunhi kannan, section Balakrishnan, Irfan Ahmed and Ms. Lily Thomas for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This appeal by Special Leave is against the judgment and decree dated July 16, 1971 passed by the High Court of Kerala in Appeal Suit Nos. 183, 195 and 249 of 1966.
618 The Appellant is the plaintiff and respondents are defendants 1 to 34 in Original Suit No. 35 of 1961 of the Sub Court, Alleppey, Kerala State.
It is a suit for parti tion in which the plaintiff claims 1/33 share in the plaint properties.
The plaintiff and defendants 1 to 33 are members of an undivided Malayala Brahmin illom.
They are the de scendants of one Vishnu Embran.
(referred to hereinafter as Vishnu (Senior)).
The relationship of the parties with Vishnu (Senior) is set out in geneological table annexed to the common judgment of the High Court.
Suffice it to state here that Vishnu (Senior) had three sons: Kesavan, Krishnan and Narayanan.
The plaintiff is the grandson of Kesavan.
One of the sons of Kesavan was given the name of his grand father.
To avoid confusion, we may call him as Vishnu (Junior).
Vishnu (Senior) did not remain with the members of his illom.
When he was 17, he took some properties of his illom for maintenance and moved out of his native village.
He settled at a place called Chambakulam.
There he was earning by performing Iswara Sevas like Santhi ceremonies and Pari karmam works in temples.
In the course of time he acquired some properties.
Vishnu (Senior) who went out to eke his livelihood at 17, reached 71.
He then thought of peacefully retiring.
He wanted that his children after his death should not quarrel over the properties.
With their full consent, he executed exhibit P. 1, a partition deed dated October 3, 1074 M.E. corre sponding May 15, 1889 A.D. Thereunder the properties ac quired by him were divided into four shares described in the deed as Schedules A, B, C & D.
He gave schedule A to Kesa van, Schedule B to Krishnan, Schedule C to Narayanan and Schedule D to his grandson Vishnu (Junior).
These schedules should not be confused with the plaint Schedule properties.
Plaint A Schedule consists of property given to Vishnu (Senior) from his original illom for the purpose of his maintenance.
Plaint B Schedule consists of properties under A and D Schedules in exhibit P. 1.
The other schedules in the plaint are not much relevant for this case.
So they are not referred to.
The case of the plaintiff, to put it shortly is that plaint B schedule properties have been acquired out of the income from Plaint A Schedule and hence they are also the illom properties in which he is entitled to a share on Per Capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33, supported the plaintiff.
Defendants 11, 13, 16 to 21, 22 and 27 contested the suit.
The case of the contesting defendant is that Vishnu (Senior) had no surplus in 619 come from plaint A Schedule properties and the acquisitions made by him which were the subject matter of division under exhibit P. 1 were his separate properties.
The trial court accepted the case of the plaintiff.
It held that parties are governed by Marumakkathayam Law.
Plaint A Schedule properties are illom properties.
Vishnu (SeniOr) could get surplus income therefrom.
That available surplus was utilised for purchasing properties dealt with under exhibit P. 1.
The said properties are, therefore, the illom properties which are available for partition.
The Court also said that in any event, the parties by their subsequent conduct appear to have treated the properties as illom properties.
Accordingly, it passed a preliminary decree for partition on Per Capita basis.
Against the said decree there were appeals and Cross Objection before the High Court.
The main question urged before the High Court related to the nature of the Plaint B Schedule properties.
The High Court on appraisal of the oral and documentary evidence held as follows: There is no acceptable evidence to show what were the properties allotted to Vishnu (Senior) for his maintenance when he left his illom, or the income therefrom.
There is no material to prove that the Plaint A Schedule properties were given to Vishnu (Senior) for his maintenance.
Nor there is evidence to establish that the Plaint B Schedule properties were acquired with the aid of surplus income from Plaint A Schedule properties.
With regard to properties allotted to Vishnu (Junior) under exhibit P. 1 and his subsequent conduct to treat the properties as joint family properties, the High Court ob served: "The point is, whether there was any intention on the part of Vishnu (Junior) to treat the properties as illom properties.
It is no doubt, a principle of Hindu Law that where a co parcener throws his self acquisitions into the common hotchpotch with the volition that the self acquisition should become joint family properties they will assume the charac ter of joint family properties.
It is doubtful whether this principle of Hindu Law can be applied to the parties here.
As already stat ed, there is no evidence that Vishnu (Junior) had the volition to throw D Schedule proper ties into the common hotchpotch." 620 In other words, it was observed firstly, there was no intention on the part of Vishnu (Junior) to treat his properties as illom properties; Secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law could be applied to the parties.
With these conclusions, the High Court reversed the decree of the trial court but it passed a preliminary decree in regard to plaint A Schedule and some other properties as under: "As plaint A Schedule was allotted only for the maintenance of Vishnu (Senior) the posses sory interest in the properties comprised therein and attributable to the share of Kesavan would devolve on the sons of Kesavan.
As regards B Schedule properties excluding the properties comprised in the D Schedule in exhibit P. 1 they being the self acquisitions of Vishnu (Senior) will be divided equally among the sons of Kesavan.
The D Schedule properties in Ext.
P. 1 comprised in the Plaint B Sched ule being the absolute properties of Vishnu (Junior), namely defendants 11 to 21.
The income from plaint A Schedule which is at tributable to the share of Kesavan and the Plaint B Schedule properties except the income from D Schedule in Ext.
P. 1 will be distrib uted among the sons of Kesavan equally.
The income from the D Schedule properties in Ext.
P. 1 and included in the Plaint B Schedule will be given to the legal representatives of Vishnu (Junior).
" Before we consider the contentions urged before us, it will be better to clear the mental cobweb as to the law applicable to Malayala Brahmins.
The trial Court said that they are governed by Marumakkathayam Law.
The High Court did not say anything specific.
It appears to have doubted the applicability of the principles of Hindu Law to them.
A question of this nature should not have been kept in doubt.
As a matter of fact no point that comes for consideration should be kept in doubt by Courts.
The litigants come to Courts for decisions and not for obtaining doubtful opin ions.
The Court, therefore, should not be a prisoner of indecision.
The clarity and promptness in decision making are the need of the hour.
That would go a long way to reduce the docket explosion.
Fortunately, for us the problem presents little diffi culty, in view of the stand taken by Counsel on both sides.
Our attention has been drawn to the decision of the Kerala High Court in Kunji Amma 621 Narayani Amma vs Dhathri Antherjanan, There it was observed at page 158: "On behalf of the plaintiff respondent, the learned Advocate General argued that the principles of Hindu Law are not applicable and that the case should be guided by rules of Maramakkathayam Law.
In Travancore it has been held from very early times that the Malabar Brahmins are governed by principles of Hindu Law as modified by local custom (6 T.L.R. 143, 19 T.L.R. 241, 34 T.L.R. 262, 19 T.L.J. 441) in Parmeswaran Narayanan vs Nangeli Antharaja nam a decision of the Royal Court of Appeal of Travancore, and Narayanan Narayan roo vs Kunjikutty Kutty and Others, 20 T.L.R. 65 F.B. it was held that unless Malayala Brahmins can be shown to have deviated in any respect from the interpretation put upon old texts by modern Hindu Sages and adopted dif ferent practices, they should be held bound by Hindu Law as now understood and acted upon elsewhere.
The main object of the Malayala Brahmin Act III of 1106 was to make provision for better management of tarwards, to define and limit the power of Karnavan, to improve the rights of the junior members and to lay down the rules of intestate succession in respect of their self acquired properties.
Appropriate provisions were made in the Act to achieve these objects.
We do not feel justi fied in holding that the plaintiff and 1st defendant are governed by principles of Maru makkathayam law, merely because such safe guards as are found in Marumakkathayam law have been incorporated in the Malayala Brahmin Act.
" No argument has been addressed before us that the view taken in the above case is incorrect.
It can, therefore, be stated and indeed not disputed that Malayala Brahmins are governed by Hindu Law, unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any.
Some of their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958).
The Act provides for the family management and parti tion of illom properties among Nambudiri Brahmin Community.
Section 13 of the Act confers right on a member of illom to claim partition on Per Capita basis.
The law being thus clarified, we may now turn to the conten tions 622 urged by Shri Vishwanatha, learned counsel for the appel lant.
He urged that the High Court proceeded on the wrong assumption that there is no proof that the plaint A Schedule properties are illom properties that were given to Vishnu (Senior) for his maintenance.
We think the Counsel is right.
That also seems obvious and causes no difficulty.
In fact, it was admitted by all the defendants (see para 19 of the trial court judgment) that the Plaint A Schedule is common illom properties which were in possession of Vishnu (Senior) under a maintenance arrangement.
There can, therefore, be no doubt or dispute on this aspect of the matter.
The question next to be considered is whether plaint B Schedule or the properties dealt with under Ext.
P. 1 are also illom properties.
They are undisputedly the acquisi tions made by Vishnu (Senior) from time to time.
They could be regarded as illom properties provided it is established that they have been acquired with the aid of illom proper ties.
That of course is the case put forward by the plain tiff.
But the relevant evidence on record is scanty.
The High Court was, therefore, justified in stating that there is no acceptable evidence produced in the case to support the plea of the plaintiff.
The matter also becomes plain if we turn to the terms of Ext.
P. 1 on which Shri Krishna Murthy Iyer for the contest ing respondents mainly depended.
It is an ancient deed, executed at an undisputed point of time.
The deed at the beginning states that all the properties divided thereunder were acquired in the name of the father "with the assets obtained by the personal efforts and improvements of mine and my children.
" It means out of the personal exertions of the father and sons.
The plaintiff himself has stated that Vishnu (Senior) was doing Iswara Sevas in temples like Santhi Ceremony and Parikarmam works.
It is said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong.
But the income earned by any member of a illom from such practice would not become the joint family property.
It would be separate property of the individual.
So too the properties purchased out of such income.
It cannot become joint family property.
The posi tion, however, may be different if a member earns from such practices which exclusively belong to the joint family.
Another significant recital in Ext.
P. 1 may now be noticed.
It provides that the properties were divided into four shares after taking into consideration the efforts made by each party to acquire the movable and immovable proper ties.
It means the division was as per 623 contributions made by each party.
If the properties were illom properties, this recital has no place in the deed.
The deed does not refer to undisputed illom properties, that is the plaint A Schedule.
It is a deed of partition.
If the properties acquired by Vishnu (Senior) were also regard ed as illore properties, there was no good reason for him to remain silent in respect of the possessory right of the plaint A Schedule.
He ought to have, in the context, re ferred to it as to who should be in possession and what he should do about the income therefrom.
Above all the deed finally provides that the parties shall enjoy with absolute rights the properties allotted in the respective shares.
These indications clearly go to show that the properties dealt with under exhibit P. 1 were the self acquisitions of Vishnu (Senior).
We thus agree with the conclusions of the High Court though not for all the reasons stated.
In the result, the appeal fails and is dismissed with costs.
N.P.V. Appeal dis missed.

Output:
The plaintiffs great grandfather executed a partition deed exhibit P. 1 under which the properties acquired by him were divided into four shares as described in Schedules A, B, C & D and distributed to his sons and grandsons.
The plaintiff claimed in a suit for partition that plaint B schedule properties consisting of properties in Schedules A plaint A schedule and hence they were also the illom proper ties in which he was entitled to share on per capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33 supported his case.
Defendants 11, 13, 16 to 21, 22 and 27 contended that the plaintif 's great grandfather had no surplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under exhibit P. 1 were the separate properties.
The trial Court decreed the suit and held that parties were governed by marumakkathayam Law and Plaint A schedule properties were illom properties, that the plaintiff 's great grandfather could get surplus income therefrom which was utilised for purchasing properties dealt with under exhibit P. 1 and, therefore, the illom properties were available for partition, and that, in any event, the parties by their subsequent conduct appeared to have treated the properties as illom properties and passed a preliminary decree for partition on per capita basis.
The matter was taken in appeal to the High Court.
Cross Objection was also filed.
The High Court held that there was no acceptable evidence to show as to what were the proper ties allotted to the original testator for his maintenance when he left his illom or the income there 616 from and that there was no material to prove that the plaint A schedule properties were given to him for maintenance; nor was there evidence to establish that the plaint B schedule properties were acquired with the aid of surplus income from plaint A schedule properties.
With regard to properties allotted to the testator 's grandson under exhibit P. 1 and his subsequent conduct to treat the properties as joint family properties, it held that firstly, there was no intention on the part of the testator 's grandson to treat his properties as illom properties, and secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law could be applied to the properties.
In appeal before this Court, it was urged that the High Court proceeded on the wrong assumption that there was no proof that the plaint A schedule properties were illom properties that were given to the plaintiffs great grandfa ther for his maintenance.
Dismissing the appeal by special leave, this Court, HELD: 1.
Malayala Brahmins are governed by Hindu Law unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any.
Some of their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958) which provides for the family management and partition of illom properties among Nambudiri Brahmin Community and Section 13 confers right on a members of illom to claim partition on per capita basis.
[621F G] 2.
Iswara Sevas in temples like Santhi Ceremony and Parikarmam works are said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong.
But the income earned by any member of an illom from such practice would not become the joint family property.
It would be separate property of the individual.
It cannot become joint family property.
The position, however, may be different if a member earns from such practices which exclu sively belong to the joint family.
[622F G] 3.1 In the instant case, there is no doubt that the plaint A schedule properties are common illom properties which were in possession of the testator under a maintenance arrangement.
The plaint B Schedule properties or properties dealt with under exhibit P. 1 are illom properties and they are acquisitions made by the testator from time to time.
They could be regarded as illom properties provided it is estab lished that they have been acquired with the aid of illom properties.
But 617 the relevant evidence on record is scanty.
The High Court was, therefore, justified in stating that there was no acceptable evidence produced in the case to support the plea of the plaintiff.
[622B, C D] 3.2 exhibit P. 1 is an ancient deed executed at an undisput ed point of time.
The terms of the deed indicate that all the properties divided thereunder were acquired in the name of the father out of the personal exertions of the father and his sons, that the properties were divided into four shares taking into consideration the efforts made by each party to acquire the movable and immovable properties, and that the parties shall enjoy with absolute rights the properties allotted in the respective shares, which clearly go to show that the properties dealt with under exhibit P. 1 were the self acquisitions of the testator.
[622E, H, 623C] 4.
Litigants come to Courts for decisions and not for obtaining doubtful opinions.
The Court, therefore, should not be a prisoner of indecision.
Clarity and promptness in decision making are the need of the hour.
That would go a long way to reduce the docket explosion.
[620G] Kunji Amma Narayani Amma vs Dhathri Antherjanan, , referred to.


Input:
Appeals Nos.
1968 1970 of 1966.
Appeals by special leave from the judgment and order dated July 16, 1962 of the Madras High Court in Tax Cases Nos. 117,118 and 119 of 1959.
section B. Banerjee and section N. Mukerjee, for the appellant (in all the appeals).
K. M. Mudaliyar, Advocate General for the State of Madras and A. V. Rangam, for the respondent (in all the appeals).
M.C. Setalvad, B. Sen, G. section Chatterjee and P. K. Bose, for the Intervener (in C. A. No. 1968 of 1966).
The Judgment of the Court was delivered by Hegde, J.
These appeals by special leave arise from the common order made by the Madras High Court in T. C. Nos.
117 to 119 (revisions Nos. 71 to 73) on its file.
The Indian Steel and Wire Products Ltd. a joint stock public limited company is the appellant in all these appeals.
At the instance of the steel controller the appellant supplied certain steel products to various persons in the Madras State during the financial years 1953 54, 1954 55) and part of 1955 56 (from April 1, 1955 to September 6, 1955).
The State of Madras assessed the turnovers of the appellant relating to those transactions to sales tax under the Madras Gen. Sales Tax Act, 1939 (Madras Act 9 of 1939) (to be hereinafter referred to as the Act), the law in force at that time.
The appellant has been assessed to tax on the basis of best judgment.
The authorities under the Act have determined appellant 's turnover during the year 1953 54 at Rs. 3129520/ and levied a tax of Rs. 16298/4 annas.
During the financial year 1954 55, its turnover was determined at Rs. 3759216/ .
and the assessment levied is Rs. 58737 12 0.
For the broken period in the financial year 1955 56, the appellant 's turnover was determined at Rs. 1453292/ and the same was assessed to tax at Rs. 22707 12 0.
Even according to the appellant, its turnovers during 1953 54 was Rs. 2912533 14 0, in 1954 55, Rs. 3971493/7/ and in 1955 56, Rs. 1725400/5/ .
Therefore, there is little room for controversy about its turnover in the relevant years.
The appellant is contesting the right of the State of Madras to levy tax on the turnovers in question.
According to the appellant, the turnovers in question could not have been considered as sales and consequently they could not have been brought to tax under the Act.
The appellant asserts that deliveries in question were made under compulsion of law and there was no agreement between the parties.
They were 481 made in pursuance of the orders of the Controller exercising powers under the Iron & Steel (Control of Production and Distribution) Order, 1941 (which will hereinafter be referred to as the order), which was issued under the Defence of India Act 1939.
It was argued on behalf of the appellant that it was the controller who determined the persons to whom the goods were to be supplied, the price at which they were to be supplied, the manner in which they were.
to be transported, and the mode in which the payment of the price was to be made.
In short, it was said that every facet of those transactions were prescribed by the controller and therefore those transactions cannot be considered as sales.
On the basis of those assertions support was sought from the decision of the House of Lords in Kirkness vs John Hudson & Co., Ltd.(1) the decision of this Court in M Is.
New India Sugar Mills Ltd. vs Commis sioner of Sales Tax.
Bihar(1), the decision of the Calcutta High Court in Calcutta Electric Supply Corporation Ltd. vs Commissioner of Income Tax, West Bengal(1) the decision of the Orissa High Court in Messrs. Cement Ltd. vs The State of Orissa(1), and a few other decisions.
It was further argued that even if those transactions are considered as sales the State before exercising its taxing power should have had in its possession material to show that the goods delivered by the appellant were delivered in that State for consumption which circumstance alone can make those transactions sales within that State; as no material was placed on record to show that the goods in question were delivered in that State for consumption it could not have brought the turnovers in respect of those transactions to tax under the Act.
These contentions of the appellant have been rejected by the authorities under the Act as well as by the High Court.
Other contentions advanced on behalf of the appellant deserve to be summarily rejected for the reasons to be mentioned hereinafter.
The principal question that falls for decision in these appeals.
is whether the transactions with which we are concerned herein are sales.
2(h) of the Act defines 'sale ' thus: " 'Sale ' with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, and includes also transfer of property in goods involved in the execution of works contract and in the, supply or distribution of goods by a co operative society. club, firm or any association to its members for cash or for deferred payment or other valuable consideration but does not include a mortgage.
hypothecation, charge or pledge" (the explanations to that definition are not relevant for our present purpo se).
(1) (2) [1963] Suppl.
2 S.C.R. 459.
(3) (4) 12 S.T.C. 205.
482 This wide definition undoubtedly covers those transactions.
But then the power of a State to tax sales is derived from Entry 54 of List II of the VII Schedule in the Constitution.
That entry as it stood at the relevant time empowered the State to tax on the sale or purchase of goods.
The scope of the expression 'sale or purchase of goods ' found in entry 48 in List II of Schedule VII of the Government of India Act 1935 which is in pari materia with the aforementioned entry 54 came up for interpretation before this Court in State of Madras vs Gannon Dunkerley(1).
In that case, the question that fell for decision was whether the words 'sale of goods ' should be given their popular meaning or whether they should have the meaning attached to them under the Sale of Goods Act.
This Court held that the expression 'sale of goods ' was, at the time when the Government of India Act, 1935 was enacted, a term of well recognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic and must be interpreted as having the same meaning as in the sale of Goods Act 1930: In the course of the judgment, Venkatarama Aiyar, J,who ,spoke for the Court after examining the various decisions cited at the Bar, observed, as follows: "Thus, according to the law both of England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods which of course pre supposes capacity to contract, that it must be supported by money consideration and that as a result of the transaction property must actually pass in the goods.
Unless all these elements are present, there can be no sale.
Thus, if merely title to the goods passes but not as a result of any contract between the parties, express or implied, there is no sale.
So also if the consideration for the transfer was not money but other valuable consideration, it may then be exchange or barter but not sale.
And if under the contract of sale, title to the goods has not passed, then there is an agreement to sell and not a completed sale.
" As laid down by this decision, to constitute a valid sale, there must be concurrence of the following elements viz. (1) parties competent to contract (2) mutual assent (3) a thing the absolute or general property in which is transferred from the seller to the buyer and (4) a price in money paid or promised.
Therefore we have to see whether all these elements are found in the transactions before us.
Before doing so it is necessary to refer to the 'order ' and the manner in which those transactions were effected.
During the World War IT iron and steel goods became scarce.
Therefore it became necessary for the Government to control the production and distribution of those goods.
In order to do so, the (1) ; 483 government issued the 'order ' on July 26, 1941, and the same came into force on August 1, 1941.
The provisions in that order which are material for our present purpose are set out hereinbelow: "2. Definitions In this Order, unless there is anything repugnant in the subject context: (a) 'Controller ' means the person appointed as Iron and Steel Controller by the Central Government, and includes any person exercising, upon authorisation by the Central Government, all or any of the powers of the Iron and Steel Controller; (b) 'Producer ' means a person carrying on the business of manufacturing iron or steel.
(c) 'Registered Producer ' means a producer who is registered as such by the Controller.
(d) 'Stockholder ' means a person holding stocks of Iron or Steel for sale who is registered as stockholder by the Controller.
(e) 'Controlled Stockholder ' means a stockholder appointed by the Controller to hold stocks of iron or steel under such terms and conditions as he may prescribe from time to time.
(f) 'Pressure Pipes ' include all Pipes and Tubes 1/8" nominal bore and above which will withstand or may be used for a working pressure of 25 lbs.
per square inch and above.
Application of Order (I) The provisions of this Order shall apply to all iron or steel of the categories specified in the Second Schedule to this Order.
(2) A certificate signed by the Comptroller or by any officer authorised by him in this behalf, in respect of any category of iron or steel, shall be conclusive proof that it is an article to which this Order is applicable.
Acquisition No person shall acquire or agree to acquire any iron or steel from a Producer or a Stockholder except under the authority of and in accordance with the conditions contained or incorporate d in a general or special written order of the controller.
Disposal No Producer or Stockholder shall dispose of or agree to dispose of or export or agree to export from British India any iron or steel, except in accordance with the conditions contained or incorporated in a general or special written order of the Controller.
10B. Power to direct sale The Controller may ' by a written Order require any person holding stock or iron 484 and steel, acquired by him otherwise than in accordance with the provisions of Clause 4 to sell the whole or any part of the stock to such person or class of persons and on such terms and conditions as may.
be specified in the Order.
10C. Power to prohibit removal The Controller may order any producer (including a registered producer), any stockholder (including a controlled stockholder) or any other person not to remove or permit the removal of any iron or steel, whether sold or unsold, from his stockyard or from any other part of his premises to any place outside the precincts of such stockyard or premises, except with the written permission of the Controller.
11 AA (3).
No producer, stockholder, or other person holding stocks of iron and steel shall without sufficient cause, refused to sell any iron or steel which he is autho rised to sell under this Order.
Explanation The possibility or expectation of obtaining a higher price at a later date shall not be deemed to be a sufficient cause for the purpose of this clause.
11B. Power to fix prices (1) The Controller may from time to time by notification in the Gazette of India fix the maximum prices at which any iron or steel may be sold (a) by a Producer, (b) by Stockholder including a Controlled Stockholder and (c) by any other person or class of persons.
Such price or prices may differ for iron and steel obtainable from different sources and may include allowances for contribution to and payment from equalising freight, the concession rates payable to each pro ducer or class of producer under agreements entered into by the Controller with the producers from time to time.
and any other disadvantages.
(2) For the purpose of applying the prices notified under sub clause (1) the Controller may himself classify any iron and steel and may, if no appropriate price has been so notified, fix such price as he considers appropriate.
(3)No producer or stockholder or other person shall sell, or offer to sell.
(and no person shall acquire) any iron or steel at a price exceeding the maximum prices fixed under sub clause (1) or (2).
Any Court trying a contravention of this Order may, without prejudice to any other sentence which it may pass, direct that any Iron and Steel in respect of which the Court is satisfied that this order has been contravened shall be forfeited to His Majesty.
" The appellant has set out in para 4 of the statement of the case the procedure adopted for acquiring iron and/ 485 or steel products under the order.
This is what is stated therein: "That Order was at all material times administered principally by the Iron and Steel Controller having his office in the city of Calcutta in the State of West Bengal who controlled the entire production and distribution of the iron and/or steel products.
Any party desiring to acquire any product has to apply to the Controller.
Upon processing such application or requisition entirely at his option and discretion, the Controller would pass such a requisition an to the Appellant for manufacture and/or despatch.
The appellant has, upon receipt of the said requisition from the Controller to prepare a Works Order for the manufacture of the products concerned and to advise the Controller; and later on completion of the manufacture the appellant has to make the product conform to the requisition processed by the Controller and then deliver the requisite quantity in the requisite shape to the Indian State Railways siding maintained at the appellant 's own factory site, in Indranagar.
in the suburbs of Jamshedpur, in the State of Bihar, and to advise the requisitionist as well as the Controller accordingly. " The correspondence relating to the delivery of steel goods in pursuance of an order placed by one K. Thiruvengadam Chetty & Co. has been produced by the appellant evidently to show the manner in which the transactions were effected.
On December 20, 1952.
Thiruvengadam Chetty and Co., wrote follows to the Controller: 'From Name K. Thiruvengadam Chetty and Company.
Address Iron Merchants and Tata Scob Dealers 93, Rasappa Chetty Street.
Madras 3.
Date 20th December 1952.
To The Iron and Steel Controller, 33, Netaji Subas Road, Calcutta.
Through the Director of Controlled Commodities, Mount Road, Madras.
Dear Sir, Please place on our behalf and at our risk and account our order on Registered Producers for material as per specification given below for delivery in such period ,as you can arrange.
We confirm that this indent is placed 486 subject to the provisions of the Steel Price Schedule regarding prices, etc., and the terms and conditions of business (including payment) of the registered producers on whom the order is placed by you and that delivery or part/delivery from any such registered producer will be accepted by us.
Please direct the registered producers concerned to send us a copy of the works order in confirmation of having booked our Indent.
Ship to Madras Saltcotaurs.
Send R. R. to Messrs. K. Thiruvengadam Chetty and Company, Iron Merchants, 93, Rasappa Chetty Street, Madras 3, through your Madras Office.
Send original and duplicate invoice to Messrs. K. Thiruvengadam Chetty and Company, 93, Rasappa Chetty Street, Madras 3 through your Madras Office.
Date of shipment desired: Ex stock as early as possible.
Quantity Pieoes Section Lengths Complete description un tested of material indented (1) (2) (3) (4) CWT.
10. . 468 M.S. rounnd 1/4" 18 ' 13 B Category 5. . .493 " 3/16" 18 ' do 5. . .453 " 5/16" 18 ' do 20 (Twenty tons only) All P.T. free on rail Saltcotaurs and bundling charge account.
Yours faithfully, (signed). . . by Partner, For K. Thiruvengadam Chetty and Company.
" The Controller forwarded that letter to the appellant with the following remarks: "The above indent is forwarded to Indian Steel and Wire Products Limited, Tatanagar, for delivery in period 1/53 or subsequently in accordance with any general or special directions of the Iron and Steel Controller.
" It may be noted that the Controller merely asked the appellant to deliver to K. Thiruvengadam Chetty and company the goods ordered "in accordance with any general or special directions of the Iron and Steel Controller.
" Our attention was not invited to any general or special order issued by the controller excepting that 487 fixing the base price.
It is clear that it was left to the appellant to supply the goods ordered at his convenience.
On the basis of the, above communication a works order was issued by the appellant to the mill superintendent, a copy of which was sent to Thiruvengadam Chetty and Company.
That order reads: "Works Order: RS/MAD/RM/15/53 of 23rd February 1953.
Delivery: P.D.1/53.
Ship to: Saltcotaurs Book to self.
Freight: To pay.
To The Mill Superintendent.
Please supply the following to the Shipping Department, M.S. Rounds our usual commercial quality in bundles in stock lengths of 12/18 feet.
TONS 1/4" diameter 10 at Rs. 486 per ton free on rail 3/16" 5 at Rs.493 Saltootaurs, plus bundling.
5/16" 5 at Rs. 453 Charge of Rs. 5 per ton.
cc: South India Iron and Hardware Merchants Association, Armenian Street, Madras.
Notice to consignees.
Delivery must be taken within three days of the arrival of the train at destination, a certificate obtained for any wrongful delivery and a claim preferred against the Railway Company forthwith under advise to us.
In the case of non arrival of any consignment advise should be given us as soon as a reasonable time for the journey has elapsed. 'All orders booked are subject to our terms of business and general understanding in force at the time of booking the orders and despatch of goods. ' 'All prices mentioned in the Works Orders are subject to revision, i.e., prices ruling at the time of despatch will be charged. '".
The works order in question specifically says that 'all orders booked are subject to our terms of business and general understanding in force at the time of booking the orders and despatch of goods '.
In fact as seen from the letter of Thiruvengadam Chetty and Co., dated August 31, 1953, the buyers were willing to change by mutual agreement the specifications of the goods to be supplied.
This is what that letter says: 488 agreement the specifications of the goods to be supplied.
This is what that letter says: "If 1/4" size is not ready, please despatch 3/8" size 20 tons as requested in our previous letter.
Please treat this as very urgent.
" From the material on record it is not possible to accept the contention of Mr. S.R. Bannerjee, learned counsel for the appellant that the dealings in question were controlled at every stage, leaving no room of concensus.
From the records before us all that could be gathered is that the controller fixed the base price of the 'steel products and determined the buyers.
In other respects, the parties were free to decide their own terms by consent.
As seen from the correspondence referred to earlier, the controller allowed the appellant to supply the goods ordered either in the first quarter of the year 1953 or subsequently.
In other words, the appellant could supply the goods in question at its convenience.
It was open to the appellant to agree with its customers as to the date on which the goods were to be supplied.
From the works order dated February 23, 1953, a copy of which was sent to one of the appellant 's customers, it is clear that all orders booked were subject to appellant 's terms of business and general understanding in force at the time of 'booking the orders and despatch of goods.
It was also open to the appellant to fix the time and mode of payment of the price of the goods supplied.
Therefore it would not be correct to contend that the transactions were completely regulated and controlled by the controller leaving no room for mutual assent.
In his revision petition dealing with the question of transport of the goods supplied the appellant stated that "the transport of goods was if at all by virtue of an independent arrangement between the petitioner and the persons to whom the goods were supplied. .
This admission clearly shows that the supplies in question were made partly on the basis of mutual assent.
It was Mr. Bannerjee 's contention that for finding out the nature of the transaction we have only to look to the order and not to the documents produced in the case.
According to him, the documents produced in this case do not fully disclose the nature of the transactions; the transactions in question had to be effected under the terms of the order; the order left no room for negotiation between the supplier and its customers and therefore we should conclude that the transactions in question are not sales.
According to Mr. Bannerjee all supplies of iron and steel products could be made only in accordance with the directions given by the controller under cl.
10B of the order.
That being so, he asserted there was no room for mutual assent.
We do not think that this contention of Mr. Bannerjee is well founded.
We are unable to agree with him that the iron and steel products could not have been supplied to any person except in pursuance of an order made by the controller under cl.
10B. We think that supplies by producers can be made in pursuance of an order of the controller under cl.5.
We are not pursuaded 489 by Mr. Bannerjee 's contention that clauses 4 and 5 merely prohibit the prospective buyer and the intending seller from buying or selling without the sanction of the controller and that those provisions do not confer power on the controller to authorise a person to acquire and to permit a producer to sell.
Those provisions, in our judgment, by implication confer power on the controller to issue the necessary authority to the buyer and the seller.
This conclusion of ours is strengthened from the circumstance that cl.10B was not a part of the order till 1946.
That provision was inserted in the order by notification No. 1(1) 1(530) A dated May 26, 1946, It is nobody 's case that the provisions of the order were incapable of being implemented till that date.
The contention of Mr. Bannerjee that the controller derives his power to authorise the buyer to buy and the seller to sell exclusively under cl.
10B, suffers from another infirmity.
Under cl.
10B, the controller gets power to require any person holding stock of iron and steel acquired by him otherwise than in accordance with the provisions of cl. 4 to sell the whole or part of the stock to such person or class of persons and on such terms and conditions as may be specified in the order.
This clause does not empower the controller to issue the authority required under cl. 4.
Our attention has not been invited to any provision in the order if we exclude from consideration cl. 4, under which the controller could have the power to authorise the buyer to buy iron and steel products.
Therefore, it is obvious that he gets that power from cl. 4, itself.
The language employed in clauses 4 and 5 is simi lar.
If the controller gets power to authorise a buyer to buy iron and steel products under cl. 4, there is no reason why he should be held to have no power under cl. 5 to authorise a producer or stock holder to dispose of his stock of iron and steel products.
Further, under cl.
10B, the controller can only require any person holding stock 'of iron and steel to sell the whole or part of his stock to such person or class of persons and on such terms and conditions as may be specified in the order.
That clause does not empower him to direct any manufacturer to manufacture any steel or iron product and to dispose of the same to any person.
In other words, a direction under cl.
10B can only be given to a person holding stock of iron and steel But under cl.5 he can authorise a producer or a stockholder to dispose of any iron or steel whether the same is in stock or not in accordance with the conditions contained or incorporated in a special or general written order issued by him.
the instant case, as can be gathered from the correspondence already referred to, the order issued by the controller could be complied with only after manufacturing the required material.
Hence, the order issued by the controller could not have been issued under cl.
10B. In this view of the matter it is not necessary for us to find out the true scope of cl.
10B. So far as cl.5 is concerned.
admittedly, it does not require the controller to regulate or control every facet of a transaction between a producer and the person to whom he supplies iron and steel products.
490 It is true that in view of the order, the area within which there can be bargaining between a prospective buyer and an intending seller of steel products, is greatly reduced.
Both of them have to conform to the requirements of the order and to comply with the terms and conditions contained in the order of the controller.
Therefore they could negotiate only in respect of matters not controlled by the order or prescribed by the controller.
It is true, in these circumstances, the doctrine of laisser faire can have only a limited ap.
plication.
That is naturally so.
In certain quarters the validity of that doctrine is, seriously challenged.
Under the existing economic compulsions all essential goods being in short supply in a welfare State like ours, social control of many of our economic activities is inevitable.
That does not mean that there is no freedom to contract.
The concept of freedom of contract has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life.
Full freedom to contract was never there at any time.
Law invariably imposed some restrictions on freedom to contract.
But due to change in political outlook and as a result of economic compulsions, the freedom to contract is now being confined gradually to narrower and narrower limits.
This aspect is vividly brought out in the 'Law of Contract ' by Cheshire and Fifoot (6th ed.) at p. 22.
Dealing with the question of freedom to contract, the learned author observes.
"As the nineteenth century waned it became ever clearer that private enterprise predicated some degree of economic equality if it was to operate without injustice.
The very freedom to contract with its corollary, the freedom to compete, was merging into the freedom to combine; and in the last resort competition and combination were incompatible.
Individualism was yielding to monopoly, where strange things might well be done in the name of liberty.
The twentieth century has seen its progressive erosion on the one hand by opposed theory and on the other by conflicting practice.
The background of the law, social, political and economic, has changed.
Laisser faire as an ideal has been supplanted by 'social security '; and social security suggest status rather than contract.
The State may thus compel persons to make contracts, as where, by a series of Road Traffic Acts from 1930 to 1960, a motorist must insure against third party risks , it may, as by the Rent Restriction Acts, prevent one party to a con tract from enforcing his rights under it; or it may empower a Tribunal either to reduce or to increase the rent payable under a l ease.
In many instances a statute prescribes the contents of the contract.
The Moneylenders Act, 1927, dictates the terms of any loan caught by its provisions; the Carriage of Goods by Sea Act, 1924, contains six pages of rules to be incorporated in every contract for 'the carriage of goods by sea from any port in Great Britain or Northern 491 Ireland to any other port; the Hire Purchase Act 1938 inserts into hire purchase contracts a number of terms which the parties are forbidden to exclude; successive Landlord and Tenants Act from 1927 to 1954 contain provisions expressed to apply 'notwithstanding any agreement to the contrary.".
It would be incorrect to contend that because law imposes some restrictions on freedom to contract, there is no contract at all.
So long as mutual assent is not completely excluded in any dealing, in law it is a contract.
On the facts of this case for the reasons already mentioned, it is not possible to accept the contention of the ,learned counsel for the appellant that nothing was left to be decid ed by mutual assent.
On the other hand, we agree with the learned Advocate General of Madras and Mr. Setalvad who appeared for.
the State of West Bengal, the intervener, that the controller 's directions were confined to narrow limits and there were several matters, which the parties could decide by mutual assent.
We shall now proceed to examine the principal decisions relied ' upon by the learned counsel for the appellant.
In Kirkness vs John, Eudson & Co. Ltd.(1), the material facts were these: On January 1, 1948, railway wagons owned by John Hudson & Co., the tax payers '.
then under requisition by the Minister of Transport. were acquired, by the British Transport Commission under section 29 of the Transport Act, 1947.
Under section 30 of that Act, compensation became payable by the Commission to the tax payers.
The amount paid as compen sation was substantially higher than the written down value of the wagons for income tax purposes and as the tax payers had received allowances under r. 6 of the rules applicable to Cases I and 11 of Sch.
D to the Income Tax Act 1918, they were assessed under section 17 of the Income Tax Act 1945 to give effect to a balancing charge in respect of the excess of the original cost of the wagons over the written down value.
The Court of Appeal held that the transfer of ' wagons under section 29 of the Transport Act 1947 was not a sale at common law, since it did not involve a mutual assent and a price;, it was an acquisition authorised by a statute and not a compulsory purchase.
Therefore, the wagons were not machinery or plant which had been 'sold ' within the meaning of section 17(1) (a) of the Act of 1945 and no, balancing charge could be made under the sub section.
This, decision was affirmed by the House of Lords by a majority.
Speak in,, for the majority, Viscount Simonds observed: "My Lords, in my opinion the company 's wagons, were not sold, and it would be a grave misuse of language, to say that they were sold.
To say of a man who has had his property taken from him against his will and been awarded compensation in the settlement of which be has had no voice, to say of such a man that he has sold his ' property appears to me to be as far from the truth as to, (1) 492 say of a man who has been deprived of his property without compensation that he has given ' it away.
Alike in the ordinary use of language and in its legal concept a sale connotes the mutual assent of two parties.
So far as the ordinary use of language is concerned it is difficult to avoid being dogmatic, but for my part I can only echo what Singleton L.J. said in his admirably clear judgment: 'What would anyone accustomed to the use of the words ,sale ' or 'sold ' answer? It seems to me that everyone must say 'Hudsons did not sell '.
I am content to march in step with everyone and say 'Hudsons did not sell '.
Nor is a different result reached by an attempt to analyse the legal concept.
When Benjamin said in the passage quoted by Singleton and Birkett L. JJ.
from his well known book on Sale, 2nd ed., p. 1, that 'by the common law a sale of personal property was usually termed a 'bargain and sale of goods ', he was by the use of the word 'bargain ' perhaps unconsciously emphasizing that the consensual relation which the word 'bargain ' imports is a necessary element in the concept ', ".
From the facts set out above it is clear that the House of Lords was dealing with a compulsory acquisition and not sale.
Therefore that decision is of no assistance to the appellant.
In Messrs. New India Sugar Mills Ltd. vs Commissioner of Sales Tax, Bihar(1), this Court was called upon to consider whether ,certain transactions effected under the Sugar Control Order 1946 were sales.
By a majority this Court held that they were not sales.
The facts as found by the High Court and accepted by this Court ,are found at pp.
463 and 464 of the report.
They are as follows: "The admitted course of dealing between the parties was that the Government of various consuming States used to intimate to the Sugar Controller of India from time to time their requirement of sugar, and similarly the factory owners used to send to the Sugar Controller of India statements of stock of sugar held by them ' On a consideration of the requisitions received from the various State Governments and also the statements of stock received from the various factories, the Sugar Controller used to make allotments.
The allotment order was addressed by 'the Sugar Controller to the factory owner, direc ting him to supply sugar to the State Government in question in accordance with the despatch instructions received from the competent officer of the State Government.
A copy of the :allotment order was simultaneously sent to the State Government concerned, on receipt of which the competent authority of the State Government sent to the factory concerned detailed instructions about the destination to (1) (1963) Supp.
2 S.C.R. 459. 493 which the sugar was to be despatched as also the quantities of sugar to be despatched to each place.
In the case of the Madras Government it is admitted that it also laid down the procedure of payment, and the direction was that the draft should be sent to the State Bank and it should be drawn on Parry and Company or any other party which had been appointed as stockist importer on behalf of the Madras Government.
" On the basis of those facts, the Court came to the conclusion that there was no room for mutual assent in those transactions.
The facts of the present case are materially different from the facts of that case.
Hence the ratio of that decision does not apply to the facts of the present case.
Whether in a given case there was mutual assent or not is a matter to be decided on the facts of that case.
In Calcutta Electric Supply Corporation Ltd. vs Commissioner of Income Tax, West Bengal(1).
the facts were: The assessees were an electric supply company.
During the war the government requisitioned an electricity generating plant of the assessees under r. 83(1) of the Defence of India Rules.
The Government wanted to acquire that plant.
As the assessees were not willing to sell the plant, they required the government to re examine the position and to rescind the order depriving them of the plant, but the government refused to re consider that decision.
The amount which the assessees received as price or compensation for the plant exceeded the written down value of the plant by Rs. 3,27,840/ .
The taxing authorities treated the excess as assessees ' profits under section 10(2) (vii) of the Indian, Income Tax Act 1922 and assessed that amount to tax.
On a reference under section 66(1) of that Act, as to whether the amount in question can be considered as assessees ' profit, Harries, C. J. and Banerjee, J. held that the transaction by which the government acquired the plant could not be regarded as a sale within the meaning of section 10(2) (vii) and therefore the sum of Rs. 3,27,840/ was not taxable as profit under that provision.
The Court further observed that the ordinary meaning of the word 'sale ' is a transaction entered into voluntarily between two persons known as buyer and seller by which the buyer acquires the property of the seller for an agreed consideration known as 'price '.
The rule laid down in that decision is the same as that laid down by the House of Lords in Kirkness vs John Hudson & Co. Ltd.(2).
In this case also the Court was dealing with a compulsory acquisition and not sale.
In M/s. Cement Limited vs The State of Orissa(3), the Court was dealing with transactions effected under the Cement Control Order 1956.
Therein the assessee company.
a manufacturer of cement, was required to sell cement to the State Trading Corporation On payment of stipulated price.
3 of the Cement Control Order provided "Every producer shall sell (1)(a) the entire quantity of cement held in stock by him on the date of the commencement (1) , (2) (3) 12 S.T.C. 205.
494 of the order, and (b) the entire quantity of cement which may be produced by him during a period of two years from the date of commencement of this order to the Corporation and deliver the same to such person or persons as may be specified by the Corporation in this behalf from time to time, (2) notwithstanding any contract to the contrary, every producer shall dispose of cement lying in stock with him or produced by him, in accordance with the provisions of sub cl.
(1) and shall not dispose of any cement in contravention thereof".
6(1) was to the effect that the price at which a producer may sell cement shall be specified in the schedule.
The sales in this case were effected under the aforementioned clauses 3 and 6.
It is under those circumstances that the Court came to the conclusion that the transactions in question were not sales but were in the nature of compulsory transfer of title.
This case again is of no assistance to the appellant.
The appellant 's learned counsel also read to us the decisions in North Adjai Coal Company (P) Ltd. vs Commercial Tax Officer and others(1) and section K. Roy vs Additional Member, Board of Revenue, West Bengal(2).
On the facts of those cases, the Court came to the conclusion that the transactions in question were not sales.
For the reasons already stated, we are unable to accept the contention that the transactions with which we are concerned in these cases are not sales.
Out of the four elements mentioned earlier, three were admittedly established, namely, the parties were competent to contract, the property in the goods was transferred from the seller to the buyer, and price in money was paid.
The only controversy was whether there was mutual assent.
Our finding is that there was mutual assent in several respects.
Hence, we agree with the High Court that the transactions before us are sales.
That takes us to the next contention by the appellant i.e., that there was no material to conclude that the goods were delivered in the State of Madras for consumption.
There is no dispute that the goods in question were delivered in the State of Madras.
The dispute centres round the question whether it is proved that they were delivered for consumption in that State.
The learned counsel for the appellant conceded that actual consumption within the State need not be proved.
All that is required to be shown is that they were delivered for consumption in the State.
The only question is whether there was any material to support the conclusion of the Sales Tax Appellate Tribunal, the final fact finding authority, that the goods were delivered in the Madras State for consumption in that State.
The High Court rightly proceeded on the basis that "the burden is certainly upon the State to establish facts upon which a subject can be taxed under a financial enactment.
" But it accepted the finding of the Sales Tax Appellate Tribunal that from the facts and circumstances established it is a reasonable inference to draw (1) 17 S.T.C. 514.
(2) 18 S.T.C. 379.
495 that the goods were delivered for consumption in the Madras State.
This aspect was dealt with by the Tribunal in para 1 1 of its order dated April 17, 1959.
On that question this is what the Tribunal says: "It will be an onerous task to pursue the subsequent history of every inter State sale transactions to find out whether after successive change of hands the ' goods left the state; but it will be permissible in such cases to consider the broad pattern of the transaction, the surrounding circumstances and any other relevant date to draw a reasonable conclusion therefrom.
In the cases before us, it is admitted that the sales were in pursuance of a scheme of internal distribution under the control order applicable to the whole of India.
That there was necessity to draw up such a scheme, indicates that the goods were essential goods, that the supply was inadequate to meet the demand, and that unless there was control and restriction in distribution it was likely that the goods would pass into the black market, and would be sold at exorbitant rates.
It is permissible inference that controlled stockists, registered stockists and registered dealers, who are the principal buyers from the appellants and who could be expected to have been given quotas in the scheme of controlled distribution, would be people expected to meet the local demand for the consumption of the controlled goods.
It is also well known to people familiar with the operation of a controlled scheme and distribution of goods that quotas are given against proved demands, and that it is not part of the scheme of distribution to provide for goods sold in one State being exported to other states inside the Union territory because each State has got its own quota of goods and list of controlled stockists, registered stockists and so on.
Therefore we infer from the analysis given of the transactions by the appellants, that the sales to various groups of purchasers, registered stockists and controlled ' stockists and so on are all intended to meet the local demands for steel products and not for re export.
An analysis of the amount concerned in each of these transactions show that the quantity of steel involved would not be large in each individual case, a circumstance again point to the inference that the sales were intended to meet the requirements of the consumers in Madras State.
In the case of sales to local Government departments, it is obvious that sales were intended for internal consumption and not reexports".
Strangely enough, the High Court at the first instance thought that this finding was unsupported by evidence.
Consequently it remanded the case back to the Tribunal for a fresh finding on that aspect 496 after giving both the parties opportunity to adduce further evidence oral and documentary.
No fresh material was placed before the tribunal after the case was sent back to it.
But on the basis of the material already on record, the tribunal again came to the very conclusion that it had come earlier.
When the cases again came back to the High Court.
that finding was accepted as correct.
In our opinion, the High Court was not right in rejecting that finding at the first instance.
The finding of the tribunal is a reasonable finding .
The inferences drawn by it are reasonable inferences from the facts proved or admitted.
It is reasonable to assume that the supplies of iron and steel products were being made to stockists in a State for consumption in that State.
It may be, as found in this case, that a small portion of the supplies had gone out of the State.
But that is not a relevant circumstance.
What we have to see is whether the Supplies in question were made for consumption in the Madras State.
On that question the finding of the Tribunal is conclusive.
The contentions of the appellant that the findings of the tribunal about the quantum of the turnover were not based on any evidence, or that those findings were arrived at in violation of the principles of natural justice or that the decision of the High Court is perverse, are wholly untenable contentions.
At the time of the hearing no reasons were advanced in support of those contentions.
Hence those contentions do not merit any detailed examination.
In the result, these appeals fail and they are dismissed with costs hearing fee, one set.
Appeals dismissed.

Output:
At the instance of the steel controller exercising powers under the Iron and Steel (Control of Production and Distribution) Order, 1941, the appellant supplied certain steel products to various persons in Madras State during the financial years 1953 54, 1954 55 and part of the financial year 1955 56.
The State of Madras assessed the turnover of the appellant relating to those transactions to sales tax under the Madras General Sales Tax Act, the law in force at that time.
The appellant contended before the authorities under the Sales Tax Act as well as the High Court that the transactions were not sales and therefore could not be taxed.
The further contention was that there was no material to show that the deliveries were for consumption within the State of Madras so as to become taxable within the State.
From the adverse decision of the High Court the appellant, by special leave, came to this Court.
In support of the contention that the transactions were not sales it was urged that they were effected under the directions of the Iron and Steel Controller given under cl.
10B of the Order and that being so there was no mutual assent between the parties to the transactions.
HELD:The authority of the controller to pass the orders in question came from cl. 5 of the order and not cl.
10B. The orders were in respect of goods not yet manufactured whereas under cl.
10B directions could be given only in respect of goods already in stock.
So far as cl. 5 is concerned admittedly it does not require the controller to regulate or control every facet of a transaction between a producer and the person to whom he supplies iron and steel products.
[488H: 489C H] In modern times the doctrine of laisser faire can have only a limited application.
That does not mean that there is no freedom of contract.
So long as mutual assent is not excluded in any dealing, in law it is a contract.
On the facts of the present case it was not possible to accept the contention that nothing was left to be decided ' by mutual assent.
On the other hand the controller 's directions were confined to narrow limits and there were several matters which the parties could decide by mutual consent.
[49OB; 491B C] Kirkness vs John Hudson & Co. Ltd. ; M/s. New India Sugar Mills Ltd. vs Commissioner of Sales tax, Bihar, [1963] Supp. 2 S.C.R. 459; Calcutta Electric Supply Corporation Ltd. vs Commissioner of Income tax.
West Bengal.
; M/s. Cement Ltd. vs State of Orissa, 12 S.T.C. 205; State of Madras vs Gannon Dunkerley, ; ; North Adjai Coal Company (P) Ltd. vs, Commercial Tax Officer & Ors.
17 S.T.C. 514 and section K. Roy vs Additional Member, Board of Revenue, West Bengal, 18 S.T.C. 379, refer red to.
(ii)From the facts and circumstances the Tribunal rightly found ' that the supplies were made to stockists in the State of Madras for 480 consumption in that State.
It may be that a small portion of the supplies had gone out of the State.
But that was not a relevant circumstance.
What had to be seen Was whether the supplies in question were made for consumption in the Madras State.
On that question the finding of the Tribunal was conclusive.
[496B C]


Input:
Civil Appeal Nos.
960 to 962 (NT) of 1975.
From the Judgment and order dated 2.3.1973 of the Allahabad High Court in Income Tax Reference No. 721 of 1970.
S.L. Aneja, Pawan Aneja and K.L. Tarieja for the Appellants.
C.M. Lodha, Ms. A. Subhashini and K.C. Dua for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These assessee 's appeals, by certificate, arise out of the Judgment and order dated 2.3.1973 of the Allahabad High Court in I.T.R. No. 721 of 1970 answering certain questions of law referred for the opinion of the High Court against the assessee.
The assessee is a Hindu Undivided Family.
The assessment years are 1954 55, 1960 61 and 1961 62.
The principal controversy in these appeals pertains to the allowance of and deduction for 'repairs ' in respect of a house property at Delhi leased out to the Chinese Embassy under a deed of lease dated 30.5.1952.
Originally assessments were completed including therein the annual letting value of this property at Rs.36,000 and allowing a deduction of Rs.6,000 for repairs under Section 24(1)(i)(a) of the Income tax Act, 1961 (Act) or the corresponding provisions of the Act of 1922.
Subsequently, the assessments were reopened on the ground that the assessee had got excess of relief.
In the re assessments the Income tax officer held that as the lessee had undertaken 'to keep 90 the premises in good and habitable condition, execute all repairs ', the deduction of Rs.6,000 was impermissible.
The Income tax officer accordingly determined the annual letting value of the property at Rs.40,000 and allowed a deduction at Rs.4,000 towards 'repairs ' under Section 24(1)(i)(b) of the Act.
In respect of the assessment year 1954 55, the assessee claimed unsuccessfully that he had undertaken ' considerable repairs and that a sum of Rs.5,645 should be allowed.
This claim was negatived by the Income tax officer who confined the allowance for repairs to the limit permissible under Section 24(1)(i)(b) of the Act on the premise that this was a case where the tenant had undertaken to bear the cost of repairs.
This view was affirmed by the Appellate Asst.
Commissioner of Income Tax and the Income tax Appellate Tribunal ( 'Tribunal ').
It is, perhaps, relevant to mention that some of the assessment years are governed by the provisions of the 1922 Act.
But, having regard to the similarity of the provisions, this does not assume any significance or affect the substance of the matter.
At the instance of the assessee, the Tribunal stated a case and referred the following three questions of law for the opinion of the High Court: (1) "Whether on the facts and in the circumstances of the case, the assessments for the years 1954 55, 1960 61 and 1961 62 were validly reopened under Section 147(a) of the Income Tax Act, 1961?" (2) "Whether on the facts and in the circumstances of the case, the provisions of Section 24(1)(i)(b) of the Income tax Act, 1961, were applicable?" (3) "Whether on the facts and in the circumstances of the case, the expenditure which was not allowed while completing the original assessments could be considered for allowance in course of assessments re opened under Section 147(a)?" As stated earlier, the High Court answered the questions against the assessee, but granted a certificate under Section 261 of the Act as in its opinion two important questions arose out of the judgment.
The questions the High Court had in mind are questions No. 2 and 3, supra.
It must, at the outset, be observed that the question as to the validity of the re opening of the assessments which was raised before the High Court was not, in our opinion rightly, re agitated here Learned counsel for the appellants urged that the High Court was in error in its opinion on questions 2 and 3.
The third question referred was whether where once an assessment is re opened by a valid notice, the whole proceedings of assessment were at large and all the claims and allowances which had been disallowed in the original assessment could be re agitated by the assessee.
The High Court has answered this proposition against the assessee.
We may take up and dispose of this contention first.
It is seen from the order of the Tribunal that though certain reliefs were claimed by the assessee before the authorities, the matter before the Tribunal was, however, confined to the question of allowance for repairs.
The relief on the claim for repairs, if otherwise tenable, can be granted even without going into this larger question.
It is, therefore, unnecessary to consider this contention in this case.
We may now turn to question No. 2 as formulated in the reference.
Learned counsel urged that the covenant for repairs embodied in the lease deed did not cast the burden to carry out the repairs exclusively on the lessee and that since the lessor had also undertaken to carry out some of the repairs, Section 24(1)(i)(b) was not attracted and that in the circumstances the benefit of Section 24(1)(i)(a) was available to the assessee.
Counsel relied upon Commissioner of Income tax vs Parbutty Churn Law, 6.
Section 24(1)(i)(b) of the Act provides that where a property is in the occupation of a tenant "who has undertaken to bear the cost of repairs", the deduction towards repairs which the assessee owner is entitled to is either the excess of the annual value over the amount of rent payable for a year by the tenant; or a sum equal to one sixth of the annual value whichever is lesser.
There is no dispute that if Section 24(1)(i)(b) is applicable the computation would be correct.
The only question, therefore, is whether, having regard to the terms of the covenant, it could be said that the tenant had undertaken to bear the cost of repairs within the meaning and for purposes of Section 24(1)(i)(b) of the Act.
The covenant in this behalf in the lease deed dated 9.9.1952 is in terms following: "To maintain and keep the demised premises in good and 92 habitable condition, tenantable, repair execute all repairs including annual white washing, repairs of electric and sanitary fittings etc., at the lessee 's expenses.
Major repairs such as repairs against collapse of the house etc., shall be undertaken by the lessors at their own cost.
" The view of the High Court, in substance, is that this covenant satisfies the requirements of and attracts Section 24(1)(i)(b) .
The correctness of this view turns upon what in the law of landlord and tenant is, the content of a covenant for 'repairs ' and whether by the terms of the present agreement, the tenant is said to have undertaken the burden of such 'repairs '.
Referring to what is implicit in and carried with the covenant for "repairs", Halsbury states: "Under a covenant to repair, a tenant is liable to repair but not to renew. 'Repair ' in this sense means the restoration by renewal or replacement of subsidiary parts of the whole, whereas 'renewal ' as distinguished from repair, means the re construction of the whole or of substantially the whole.
Where the demised building is erected on in herently defective foundations, the tenant is not liable to substitute new foundations . " (See Halsbury 's Laws of England 14th Edn.
paragraph 285) In regard to the Standard of Repairs, Halsbury, at paragraph 286, states: "If he has expressly covenanted to put a house into tenantable repair and to keep it in such repair, and it is not in tenantable repair at the commencement of the tenancy, the tenant must do the necessary repairs, not with standing that the building is thereby put in a better condition than when the landlord let it.
The effect is the same if, without expressly covenanting to put it into repair, the tenant only covenants to keep the house in tenantable repair.
Such a covenant presupposes putting the house in such repair, and keeping it in repair during the term.
The construction of the covenant is the same whether the covenant specifies 'tenantable ' or 'habitable ' or 'good ' repair.
A general covenant to repair without any such words is satisfied if the premises are kept in a substantial state of repair.
(emphasis supplied) 93 7.
The oft quoted observations in Lurcott vs Wakely and Wheeler, as to what is meant by 'repairs ' are generally considered apposite.
This has been referred to and relied upon by the High Court.
The observations in Lurcott 's case was referred to with approval by the Privy Council in Rodesia Railway Ltd. vs Income tax Collector, [1933] Appeal cases 368.
The idea of 'repair ' may include replacement or even a renewal.
But the converse may not be true.
All replacements or renewals need not necessarily be 'repairs '.
In the case of a building, restoration of stability or safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the re construction of the entirety of the subject matter may not be so regarded.
The somewhat comprehensive import of the word 'repair ' in this context is evident from the reliance by Forbes J. in Ravenseft Properties Ltd. vs Davstone (Holdings) Ltd., [1980] Q.B. 12 on the following observations of Sir Herbert Cozens Herdy MR in Lurcott 's case (supra): "It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by re building it according to the requirements of the county council." Having regard to somewhat comprehensive nature of the obligations that go with and are attached to and recognised under the tenant 's covenants for 'repairs ', it must be held that the covenant in the present case is one under which the tenant has undertaken 'substantial repairs ' and it must, accordingly, be held to fall within Section 24(1)(i)(b) of the Act and that the allowance for repairs must be one under, and limited to, that provision.
The case of the assessee that it should fall under Section 24(1)(i)(a), we are afraid, is very nearly unarguable.
There is no substance in the contention.
This is clearly not a case where the burden of carrying out repairs as understood in the context of Section 24(1)(i)(b) is shared between the lessor and the lessee.
The obligation is on the lessee alone.
The obligation under the latter part of the covenant does not relate to such repairs.
The appellant 's reliance on Commissioner of Income tax vs Parbutty Churn Law, supra is in the facts of the present case misplaced.
In the result, for the foregoing reasons these appeals fail and are dismissed, but in the circumstances, without an order as to costs.
N.P.V. Appeals dismissed.

Output:
% The appellants, a Hindu undivided family, leased out a house owned by them.
The covenant in the lease deed stated that the tenant will maintain and keep the demised premises in good and habitable condition, tenantable, repair, execute all repairs including annual white washing, repairs of electric and sanitary fittings etc.
at the lessee 's expenses, and that the lessors shall undertake at their own cost major repairs such as repairs against collapse of the house.
Originally in the assessments for the years 1954 55, 1960 61 and 1961 62, the annual letting value of the property was arrived at RS.36,000 and a deduction of Rs.6,000 was allowed for repairs under section 24(1)(i)(a) of the Income Tax, Act, 1961.
Subsequently, the assessments were re opened on the ground that the assessee had got excess relief.
In the re assessments, the Income Tax officer held that as the lessee had undertaken to keep the premises in good and habitable condition, execute all repairs, the deduction of Rs.6,000 was impermissible.
He accordingly determined the annual letting value of the property at Rs.40,000 and allowed a deduction of Rs.4,000 towards repairs under s.24(1)(i)(a) of the Act.
In the reopened assessment for the year 1954 55, the assessee 's claim for deduction of Rs.5,645 being the cost of the repairs undertaken by them was disallowed on the ground that this was a case where the tenant had undertaken to bear the cost of the repairs and, therefore, the allowance for repairs was limited to the limit permissible under section 24(1)(i)(b).
The Appellate Assistant Commissioner and the Income Tax Appellate Tribunal affirmed the above view.
88 At the instance of the assessee, the Tribunal stated a case and referred it to the High Court which though answered against the assessee, granted a certificate under section 261 of the Act, regarding the applicability of section 24(1)(i)(b) and reconsideration of deduction of the expenditure which was not allowed in the original assessment in the course of reopened assessments.
In the appeal by special leave, it was urged that the covenant for repairs embodied in lease deed did not cast the burden to carry out the repairs exclusively on the lessee and that since the lessor had also undertaken to carry out some of the repairs, section 24(1)(i)(b) was not attracted and the benefit of section 24(1)(i)(a) was therefore available.
On the question whether, having regard to the terms of the covenant, it could be said that the tenant had undertaken to bear the cost of repairs within the meaning, and for purposes, of section 24(1)(i)(b) of the Act.
Dismissing the appeals, ^ HELD: 1.1 This is clearly not a case where the burden of carrying out repairs as understood in the context of section 24(1)(i)(b) of the Income Tax Act, 1961 is shared between the lessor and the lessee.
The obligation is on the lessee alone.
The obligation under the latter part of the covenant does not relate to such repairs.
[93G H] 1.2 The idea of 'repair ' may include replacement or even a renewal.
But the converse may not be true.
All replacements or renewals need not necessarily be 'repairs '.
In the case of a building, restoration of stability of safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the reconstruction of the entirety of the subject matter may not be so regarded.
[93B C] A general covenant to repair without any such words as tenantable or habitable or good repair is satisfied if the premises are kept in a substantial state of repair.
[92H] Having regard to somewhat comprehensive nature of the obligations that go with and are attachment to and recognised under the tenant 's covenants for 'repairs ', it must be held that the covenant in the present case is one under which the tenant has undertaken 'substantial repairs ' and it must, accordingly, be held to fall within clause 89 (b) of section 24(1)(i) of the Act and not under clause (a) of the section and that the allowance for repairs must be one under, and limited to that provision.
[93F] Commissioner of Income tax vs Parbutty Churn Law, ; Lurcoff vs Wakely and Wheeler, [1911] I K.B. 905; Rodesia Railway Ltd. vs Income tax Collector, [1933] Appeal Cases 368; Ravenseft Properties Ltd. vs Davstone (Holdings) Ltd., [1980] Q.B. 12 and Halsbury 's Laws of England, 4th Edn., paragraph 286, referred to