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Appeal No. 431 of 1963.
Appeal from the judgment and decree dated May 21, 1958 of the Punjab High Court in Civil Regular Second Appeal No. 263 P of 1952.
Tarachand Brijmohanlal, for the appellants.
B.R.L. lyengar, S.K. Mehta and K.L. Mehta, for the respondents.
The Judgment of the Court was delivered by Mudholkar, J.
The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and Pratap Singh is within time.
According to the appellants the suit is governed not by article 141 of the Limitation Act, 1908 (9 of 1908) as held by the High Court but either by article 142 or by article 144 and is on that basis barred by time.
While it is conceded on behalf of the respondents that the suit is not governed by article 141 it is contended that it is governed by article 144 and not by article 142 and is within time.
In order to appreciate the contentions it is necessary to set out the relevant facts which are no longer in dispute.
Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot.
Out of this land 481 kanals 7 marlas was in her possession as occupancy tenant, the landlord being the Raja of Faridkot while the remaining land was held by Smt.
Raj Kaur as Adna Malik, the Aala malik again being the said Raja of Faridkot.
In Samvat 1953 (A.D.1896) Smt.
Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the former 's son Bakshi Singh and put him in possession of the whole of the land.
Bakshi Singh transferred part of the land to Pratap Singh, second son of Mahan Kaur, who is respondent No. 2 in the appeal.
Mahan Kaur had one more son Lal Singh and he is respondent No. 1 in this appeal.
In the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the court of Sub Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid.
This suit was decreed on February 9, 1916.
Raj Kaur died on August 14, 1930.
On February 19, 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands, one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik.
These suits were decreed on March 12, 1938 and in execution of the decrees obtained in these suits the Raja 65 took possession of the entire land in October 1938.
On April 7, 1948 he sold the entire land along with some other land to one Kehar Singh for Rs. 84,357 5 0.
Thereupon Gurbinder Singh and Balbinder Singh.
who are the appellants before us, filed a suit for pre emption of the land against Kehar Singh and obtained a decree in their favour.
In execution of that decree they got possession of the land on June 22, 1950.
On October 20, 1948 Mst.
Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot.
Later she impleaded the appellants as defendants to that suit and discharged the Raja of Faridkot.
On February 17, 1950, Lal Singh, respondent No. 1, filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh.
To that suit he joined Prem Kaur and Pratap Singh as defendants.
Later, however, Pratap Singh was transposed as a plaintiff.
Both the suits were consolidated and were tried together.
The suit of Prem Kaur was dismissed by the trial court but that of the respondents was decreed to the extent of half share in the property.
Prem Kaur and the appellants preferred appeals before the District Court but that court dismissed both the appeals.
A second appeal was taken by the appellants as well as by Prem Kaur to the High Court and cross objections were preferred by the respondents.
The High Court dismissed these appeals as well as the cross objections.
In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj Kaur.
Their claim was resisted by the appellants on several grounds in the courts below.
Before us, however, only one ground is pressed and that is, the suit is barred by limitation.
As already stated, according to the appellants, the suit is governed either by article 142 or by article 144 of the Limitation Act and not by article 141.
Mr. lyengar for the respondents.
does not rely upon article 141 at all.
He also contends that article 142 has no application and that the suit is governed by article 144 only.
Mr. Tarachand Brijmohanlal for the appellants also relied on article 144 in the alternative.
In order that article 142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession.
It is no one 's case that Lal Singh ever was in possession of the property.
It is true that Pratap Singh was in possession of part of the property which particular part we do not know by reason of a transfer thereof in his favour by Bakshi Singh.
In the present suit both Lal Singh and Pratap Singh assert their claim to property by success on in accordance with the rules contained in the dastur ul amal whereas the possession of Pratap Singh for some 66 time was under a different title altogether.
So far as the present suit is concerned it must, therefore, be said that the plaintiffs respondents were never in possession as heirs of Raj Kaur and consequently article 142 would not be attracted to their suit.
It is in these circumstances that we have to consider whether under article 144 the suit is barred by time.
The starting point of limitation set out in col. 3 of article 144 is as follows: "When the possession of the defendant becomes adverse to the plaintiff".
To recapitulate the events.
Raj Kaur died on August 14, 1930 whereupon under dastur ul amal her daughters Prem Kaur and Mahan Kaur became entitled to the possession of the land.
According to the appellants the daughters succeeding their mother took an absolute estate.
Assuming that is so, what would be the position? As already stated, Bakshi Singh and Pratap Singh were in possession of the entire land belonging to Raj Kaur.
Ignoring for the time being their relationship with Raj Kaur, what can be said is that they were adversely in possession to the true owners, that is, Prem Kaur and Mahan Kaur, daughters of Raj Kaur as from August 14, 1930.
Before, however, they could perfect their title against Prem Kaur and Mahan Kaur the Raja instituted a suit for possession, obtained a decree thereunder and actually entered into possession to the entire land in October, 1938.
Though the Raja obtained possession under a decree of the court he was in the eye of law nothing but a trespasser in so far as the heirs of Raj Kaur, her daughters Prem Kaur and Mahan Kaur were concerned.
Mahan Kaur had in fact died on July 13, 1938, i.e. before the Raja obtained possession.
Therefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, 1938.
Kehar Singh who was a transferee from the Raja stood in the Raja 's position and got the benefit of the Raja 's adverse possession.
Similarly the appellants who had preempted these lands under the decree obtained against Kehar Singh got advantage not only of the Raja 's adverse possession but also of Kehar Singh 'section The sum total of the adverse possession of these three persons at the date of the respondent 's suit would, however, be less than 12 years and so the respondents ' suit could not be said to be barred by article 144 if the starting point of limitation is taken to be some day in October, 1938.
Mr. Tarachand Brijmohanlal, however, advanced an interesting argument to the effect that if persons entitled to immediate possession of land are somehow kept out of possession may be by different trespassers for a period of 12 years or over, their suit will be barred by time.
He points out that as from the death of Raj Kaur her daughters, through one of whom the respondents claim.
were kept out of possession by trespassers and that from the date of Raj Kaur 's death right up to the date of the respondents 67 suit, that is, for a period of nearly 20 years trespassers were in possession of Mahan Kaur 's, and after her death, the respondents share in the land, their suit must therefore be regarded ' as barred by time.
In other words the learned counsel wants to tack on the adverse possession of Bakshi Singh and Pratap Singh to the adverse possession of the Raja and those who claim through him.
In support of the contention reliance is placed by learned counsel on the decision in Ramayya vs Kotamma(1).
In order to appreciate what was decided in that case a brief resume of the facts of that case is necessary.
Mallabattudu, the last male holder of the properties to which the suit related, died in the 'year 1889 leaving two daughters Ramamma and Govindamma.
The former died in 1914.
The latter surrendered her estate to her two sons.
The plaintiff who was a transferee from the sons of Govindamma instituted a suit for recovery of possession of Mallabattudu 's property against Punnayya, the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death.
Punnayya was minor at the date of gift and his eider brother Subbarayudu was managing the property on his behalf.
Punnayya, however, died in 1894 while still a minor and thereafter his brothers Subbarayudu and two others were in possession of the property.
It would seem that the other brothers died and Subbarayudu was the last surviving member of Punnayya 's family.
Upon Subbarayudu 's death the properties were sold by his daughters to the third defendant.
The plaintiffs appellants suit failed on the ground of limitation.
It was argued on his behalf in the second appeal before the High Court that as the gift to Punnayya was oral it was invalid, that consequently Punnayya was in possession as trespasser, that on Punnayya 's death his heir would be his mother, that as Subbarayudu continued in possession Subbarayudu 's possession was also that of a trespasser, that as neither Subbarayudu nor Punnayya completed possession for 12 years they could not tack on one to the other and that the plaintiff claiming through the nearest reversioner is not barred.
The contention for the respondents was that there was no break in possession so as to retest the properties in the original owners, that Punnayya and Subbarayudu cannot be treated as successive trespassers and that in any event the real owner having been out of possession for over 12 years the suit was barred by limitation.
The High Court following the decision of Mookerjee J. in Mohendra Nath vs Shamsunnessa(3)held that time begins to run against the last full owner if he himself was dispossessed and the operation of the law of limitation would not :be arrested by the fact that on his death he was succeeded by his widow, daughter or mother, as the cause of action cannot be prolonged by the mere transfer of title.
It may be mentioned that as Mallabattudu had given up possession to Punnayya under an invalid gift article 142 of the Limitation Act was clearly attracted.
The (1) Mad. 370.
(2) , 164.
68 sons of Govindamma from whom the appellant had purchased the suit properties claimed through Mallabattudu and since time began to run against him from 1887 when he discontinued possession it did not cease to run by the mere fact of his death.
In a suit to which that article applies the plaintiff has to prove his possession within 12 years of his suit.
Therefore, so long as the total period of the plaintiff 's exclusion from possession is, at the date of the plaintiff 's suit, for a period of 12 years or over, the fact that this exclusion was by different trespassers will not help the plaintiff provided there was a continuity in the period of exclusion.
That decision is not applicable to the facts of the case before us.
This is a suit to which article 144 is attracted and the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of this period he can avail of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers.
In so far as the adverse possession of Bakshi Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her life time.
That being so, article 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which article 142 applied.
No doubt, there, on behalf of the plaintiff appellant it was argued on the authority of Agency Co. vs Short( ') that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession; that on the death of Punnayya it must be taken that there was an interruption in the possession and that there was an interval between Punnayya 's death and Subbarayudu 's taking possession in his own right however minute the interval may be and that except in the case of succession or revolution all other cases would fall within the principle enunciated in Agency Co 's case(1).
The learned Judges did not accept the contention but relying upon the decision in Willis vs Earl Howe(2) and a passage 'in Dart on Vendors and Purchasers, Vol.
17th ed.
p. 474 held that the suit was barred by time.
It may be pointed out that on Punnayya 's death his mother would be the heir and that it was established in that case that she was living with his brother Subbarayudu and his other brothers.
Subbarayudu would therefore, be a presumptive reversioner on the death of his mother and there was evidence to show that she was a consenting party to Subbaryudu 's enjoying the properties after Punnayya 's death.
It is under these circumstances that the High Court found it difficult to hold that there was a fresh trespass by Subbarayudu after the death of Punnayya.
On the other hand, according to them, there was a continuity of possession because the person who continued to hold possession was the presumptive heir of the deceased.
From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all.
In the case before us what (1)[1888] 13 A.C. 793.
(2) 69 is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh.
The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers.
As it has turned out, the possession of the Raja, though obtained under the decree of a civil court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property.
Thus this is a case of one trespasser trespassing against another trespasser.
There is no connection between the two and, therefore, in law their possession cannot be tacked on to one another.
As pointed out by Varadachariar J., in Rajagopala Naidu vs Ramasubramania Ayyar(1).
"Further the doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession.
" Where it applies the principle laid down in Agency Co 's(1) case would apply and preclude the tacking of possession of successive trespassers.
The following observations of Lord Macnaghten in that case are pertinent and run thus: "They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place.
There is no one against whom he can bring an action.
He cannot make any entry upon himself.
There is no positive enactment, nor is there any principle of law.
which requires him to do any act.
to issue any notice or to perform ,my 'ceremony in order to rehabilitate himself.
No new departure is necessary.
The possession of the intruder, ineffectual for the purpose or transferring title, ceases upon its abandonment to be effectual for any purpose.
It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant.
There is not, in their Lord ships ' opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute.
There the statute 'continues to run ' because there is a person in possession in whose favour it is running.
" This view has not been departed from in any case.
At any rate none was brought to our notice where it has not been followed.
Apart from that what we are concerned with is the language used by the legislature in the third column of article 144.
The starting point of limitation there stated is the date when the possession of (1) A.LR. 70 the defendant becomes adverse to the plaintiff.
The word "defendant" is defined in section 2(4) of the Limitation Act thus: " 'defendant ' includes any person from or through whom a defendant derives his liability to be used".
No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons.
There can be no jural relationship between two independent trespassers.
Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period.
An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession.
In our opinion, therefore, the respondents ' suit is within time and has been rightly decreed by the courts below.
We dismiss this appeal with costs.
Appeal dismissed.

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One Mst.
Raj Kaur was holding certain lands on different tenures under the Raja of Faridkot.
She had two daughters.
She adopted the son of one of them and put him in possession of all the lands.
He transferred a part of the lands to the second respondent who was son of the other daughter of Raj Kaur.
After Raj Kaur 's dearth the Raja filed suits for possession of the land, and in execution of the decree he obtained in those suits, took possession of the entire land, in October, 1938.
He then transferred the land, but the transferee was dispossessed by the appellants in June 1950, in execution of a decree they obtained, in a suit for preemption filed by them against the transferee.
The second respondent 's mother had died in 1938 and her sons the first and second respondents, filed a suit for possession of the entire land in February 1950, as heirs of Raj Kaur, but it was decreed only to the extent of their half share, and the decree was affirmed by the High Court.
In the appeal to this Court it was contended that the suit was governed either by article 142 or article 144 of the Indian Limitation Act, 1908, and on either basis, was barred by time.
HELD: (i) Article 142 would not be attracted to the suit.
In order that the article may be attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or some one through whom the defendant claims or alternatively, the plaintiff should have discontinued possession.
It was no one 's case that the first respondent was ever in possession of the property.
As regards the second respondent 's possession at one time of a part of the property, it was by reason of a transfer by the adopted son.
The claim in the instant case, however, was by succession, under a different title altogether, and so it must be held that the plaintiffs respondents, as heirs of Raj Kaur, were never in possession of the land.
[65H] (ii) Article 144 was applicable to the suit, but the suit was not barred by time.
Adverse possession against the respondents started in October.
1938, when the Raja took possession of the land.
To that adverse possession could be added that of his transferee and that of the appellants who had preempted the lands under the decree obtained by them against the transferee.
But, the sum total of the adverse possession of all those persons at the date of the respondent 's suit would be less than 12 years.
The adverse possession of the adopted son could not be tacked on to the adverse possession of the Raja and those who claim through him, because, in a suit to which Art 144 is attracted, the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit, and for computation of that period, he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent tres 64 passers.
The starting point of limitation in article 144 is the date when the possession of the defendant becomes adverse to the plaintiff.
The gist of the definition of the word "defendant" in section 2(4) of the Act is the existence of a jural relationship between the different persons referred to in the definition, and there can be no jural relationship between two independent trespassers.
[66 F H; 68C; 70B].
Ramayya vs Kotamma, Mad. 370, explained.


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Appeals Nos. 645 and 646 of 1957.
Appeal from the judgment and decree dated August 1956, of the Patna High Court, in Second Appeals Nos. 2155 and 2156 of 1948.
A. V. Viswanatha Sastri and R. C. Prasad, for the appellant.
B. K. Garg, M. K. Ramamurthi, section C. Agarwal, and D. P. Singh, for respondents Nos.
1 to 4. 1961.
April 28.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
These are appeal against the judgment of the High Court of Patna in Second Appeals Nos.2155 and 2156 of 1948 on certificates granted by the High Court under article 133(1)(c) of the Constitution.
The facts leading to this litigation lie in a narrow compass.
One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate.
For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two persons, Rajdewan Dubey and Kailash Dabey, who were also the next reversioners, for a sum of Rs. 1,100.
It is not in dispute that this deed is binding on the reversioners.
On June 17, 1943, Laung Kuer sold to the appellant a portion of the properties which were the subject matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600 Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was paid in cash.
It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a ruined condition.
It is to meet these expenses that Laung Kuer raised Rs. 500.
After obtaining the sale deed, the appellant sought 561 to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties.
The appellant deposited the mortgage amount in court under section 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption.
Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour the appellant was not binding on the reversioners.
And both the suits were tried together.
The parties were at issue on several questions of fact of which the only one material at this stage is whether the sale in favour of the appellant was supported by necessity and binding on the reversioners.
The District Munsif of Palamau who tried the suits held on a review of the evidence that necessity was established in respect of all the four items of consideration and that the sale was binding on the reversioners.
He accordingly dismissed Title Suit No. 126 of 1943 filed by the respondents and granted a decree for redemption in Title Suit No. 69 of 1944 filed by the appellant.
The respondents herein, the reversioners, preferred appeals against both the decrees passed by the District Munsif of Palamau and they were heard by the Subordinate Judge of Palamau, who, agreeing with the findings given by the District Munsif, affirmed the decrees and dismissed the appeals.
Against these decrees, the respondents preferred Second Appeals Nos. 2155 and 2156 of 1948 in the High Court of Patna.
While these appeals were pending, Laung Kuer died on March 14, 1952, and on the application of the respondents, the plaint in Title Suit No. 126 of 1943 was amended by adding reliefs for possession and mesne profits.
The appeals were then heard by a Bench consisting of Rai and Misra, JJ., who in separate but concurring judgments, held that the sale deed in favour of the appellant was not binding on the reversioners.
Misra, J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity.
Indeed, being a finding of fact, it would be binding on the court in Second 562 Appeal.
He, however, held, following the decision in Dasrath Singh vs Damri Singh (1) that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them.
A different view was taken in Lala Ram Asre Singh vs Ambica Lal (1), where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay.
But the learned Judge declined to follow this decision and stated the reason thus: "Following, therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later or to refer the case to a larger Bench for settling the position.
In my opinion, however, the present case is not one in which it is desirable to refer this case to a larger Bench.
Following, therefore, the authority of this Court in Dasrath Singh 's case which completely covers the present case, it must be held that the courts below were in error in relying upon the decision in Lala Ram Asre Singh 's case."
In the result the learned Judge held that the sale deed in favour of the appellant dated June 17, 1943, was not binding on the reversioners.
Rai, J., expressed the view that as the bona fides of the sale in favour of the appellant was questioned by the reversioners and as there had been no finding on that point by the Subordinate Judge, the matter might have to be remanded for a finding on that question, but that, as the sale deed was not supported by necessity, he agreed with the conclusion of Misra, J. The Second Appeals were accordingly allowed and consequential reliefs granted.
Thereafter, the appellant applied in the High Court under article 133 for leave to appeal to this court, and in granting certificates, Ramaswami, C. J., and Raj Kishore Prasad, J., observed in their (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.(2) 1i Pat.L.T. 6; A.I.R. 1929 Pat.563 Order dated November 27, 1956, that there being a conflict between the decisions in Dasrath Singh 's case (1) and Lala Ram Asre Singh 's case (2), the point was one of sufficient importance for grant of leave to appeal to this Court.
They also stated that the question as to the practice to be followed when there was a conflict of decisions, was likewise one of public importance, which ought to be settled by this Court.
They accordingly granted certificates under article 133 (1)(c) and that is how these appeals come before us.
Before considering the two questions referred to in the order of the High Court granting certificates, we shall deal with a contention raised on behalf of the respondents, which if well founded would necessitate a remand of these appeals.
It was argued that the sale deed in favour of the appellant was not bona fide, that it had been so held by the District Munsif, but that the Subordinate Judge had failed to record a finding on this question, and that therefore there should be a remand for a decision on that point.
As already stated, Rai, J., appears to have been impressed by this contention.
But when the contention is further examined it will be found to be wholly without substance.
What the District Munsif said was that "after the death of Prithi Dubey the relatives of Lawan Kuer had fallen on her property like vultures", and that it was quite possible "that the transaction in question was also brought at their instance and they were also benefited by it."
This only means that the relatives of Laung Kuer were guilty of spoliation of the estate.
But that would not affect the rights of the appellant unless he was a party to it, which, however, is not the case, and that is what the District Munsif himself observes with reference to this aspect: "But in the present suit I have got to consider the interest of Jaisri Sahu who has in good faith already paid Rs. 500 to the Mostt.and has deposited the balance of Rs. 1,100 in court for the redemption of the Zarpeshgi."
This finding that the appellant himself acted bona fide was not challenged before the Subordinate Judge (1) 8 Pat.L.T. 314.A.I.R. 1927 Pat. 219.(2) 11 Pat.L.T. 6; A.I.R. 1929 Pat.564 on appeal and the point is accordingly not open to the respondents.
Dealing next with the points mentioned in the Order of the High Court dated November 27, 1956, the first question that arises for decision is whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage.
This has been answered in the affirmative by the learned Judges of the High Court on the strength of the decision in Dasrath Singh vs Damri Singh (1).
There the last male holder, one Sitaram Singh, had created a usufructuary mortgage, and after his death the widow sold the property for the discharge of this debt and of certain other debts, and for meeting the marriage expenses of her daughter and grand daughter.
It was held by Das and Adami, JJ., that all these items of consideration were supported by necessity, but nevertheless the sale was not binding on the reversioners.
Das, J., who delivered the judgment observed as follows "It is contended that under the terms of the usufructuary mortgage it would be open now to the plaintiffs to redeem that mortgage and it is pointed out that their right to redeem should not have been jeopardised by the widow by the transfer of the property to the mortgagee.
In my opinion this argument is right and should prevail."
If the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it.
Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them.
That, however, is not the law.
When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her.
She fully represents the estate, the interest of (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.565 the reversioners therein being only spes successionis.
The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one.
It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law.
It is for this reason that it has been held that when Crown takes the property by escheat it takes, it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: Collector of Masulipatam vs Cavaly Venkata (1).
Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume.
Her powers in this regard are, as held in a series of decisions beginning with Hanooman Persaud vs Mussamat Ba booee (2), those of the manager of an infant 's estate or the manager of a joint Hindu family.
In Venkaji vs Vishnu (3) it Was observed that "A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided. . she acts fairly to her expectant heirs '."
And more recently, discussing this question, it was observed in Viraraju vs Venkataratnam ( '): "How exactly this obligation is to be carried out, whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound.
In the absence of mala fides or extravagance, and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation."
Judged by these principles, when there is a mortgage subsisting on the property, the question whether (1) (1861) 8 M.I.A. 529.(3) , 536.(2) (4) I.L.R. 231.72 566 the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case.
What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties.
If the income from the property has increased in value, it would be a reasonable step to take to dispose of some of the properties in discharge of the debt and redeem the rest so that the estate can have the benefit of the income.
In this view, the decision in Dasrath Singh 's case,( ') in so far as it held that a Bale by a widow of a property which is subject to a usufructuary mortgage is not binding on the reversioners must be held to be wrong.
In Lala Ram Asre Singh 's case (2), which was a decision of Das and Fazl Ali, JJ., the facts were similar to those in Dasrath Singh 's case (1).
Dealing with the contention that a sale by the widow of properties which were the subject matter of a Zerpesbgi deed was not binding on the reversioners because the Zerpeshgidar was in possession of the properties and he could not sue to recover the amount due thereunder, Das, J., delivering the judgment of the court observed: "This in my view is an impossible argument.
The debt was there; it was a subsisting debt, only the creditor was in possession of a part of the estate and was unable to recover it by instituting a suit in the civil courts.
But the result was that a considerable portion of the income was withdrawn from Basmati Kuer who had succeeded her husband.
It is well established that where a case of necessity exists, an heiress is not bound to borrow money, with the hope of paying it off before her death.
Nor is she bound to mortgage the estate, and thereby reduce her income for life.
She is at liberty, if she thinks fit, absolutely to sell off a part of the estate."
In our judgment these observations correctly state the position in law.
It will be noticed that Das, J., deli (1) 8 Pat.L. T. 314; A.I.R. 1927 Pat.219, (2) ii Pat.L. T. 6; A.I.R. 1929 Pat.567 vered the judgment in both Dasrath Singh 's case (1) and Lala Ram Asre Singh 's case (2 ) and that the decision in Dasrath Singh 's case (1) is not referred to in the judgment in Lala Ram Asre Singh 's case (2).
It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes.
She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her.
On the other hand, by a sale of a portion of the properties covered by the Zerpeshgi deed dated June 21, 1935, she was able to redeem the other properties and the estate had the benefit of the income from those properties.
The District Munsif and the Subordinate Judge on appeal have both of them held on a review of all the facts that the sale in favour of the appellant is a proper one binding on the reversioners.
We are of opinion that this finding is not open to attack in Second Appeal.
Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of the same High Court.
When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
In Buddha Singh vs Laltu Singh (3), the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench.
After referring to Suraya Bhukta vs Lakhshminarasamma (4) and Chinnasami Pillai vs Kunju Pillai (5), where decisions had been given based on the opinions expressed by Devananda Bliatta in the Smriti Chandrika, the Privy Council observed: "Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision, Parasara Bhattar vs Rangaraja Bhattar (6) of the same court to which Turner, (1) 8 Pat.L.T. 314; A.I.R. 1927 Pat.(2) 11 Pat.L.T. 6; A.I.R. 1929 Pat.(3) All. (4) Mad.(5) Mad.152 (6) Mad.2. 568 C. J., was also a party.
In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed.
It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies.
Had that course been followed their Lordships would probably have had more 'detailed reasoning as to the change of opinion on the part at least of one Judge." (pp. 622, 623).
Considering this question, a Full Bench of the Madras High Court observed in Seshamma vs Venkata Narasimharao (1): "The Division Bench is the final Court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law.
In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; see The Vera Cruz (No. 2) (2), Harrison vs Ridgway Ratkinsky vs Jacobs (4) and Phillips vs Copping If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the rules of this court provide.
If this course is not adopted, the courts subordinate to the High Court are left without guidance.
Apart from the impro priety of an appellate Bench refusing to regard itself bound by a previous decision on.
a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice, there are the additional factors of the loss of money and, the waste of judicial time."
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in (1) I.L.R. , 474.(2) (3) (4) (5) [1935] 1 K.B. 15.569 case of difference of opinion, the question should be authoritatively settled.
It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision.
The question has also been discussed as to the correct procedure ' to be followed when two such conflicting decisions are placed before a later Bench.
The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later.
In England the practice is, as noticed in the judgment in Seshamma vs Venkata Narasimharao (1), that the decision of a Court of Appeal is considered as a general rule to be binding on it.
There are exceptions to it, and one of them is thus stated in Halsbury 's Laws of England, third edition, Vol. 22, para.
1687, pp. 799, 800: "The court is not bound to follow a decision of its own if given per incuriam.
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.
In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords." In Virayya vs Venkata Subbayya (2) it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in Bilimoria vs Central Bank of India (3 ).
The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other.
We have no doubt that when such situations arise, the Bench (1) I.L.R. , 474.(2) A.I.R 1955 Andhra 215, 217.(3) A.I. R. 570 hearing cases would refer the matter for the decision of a Full Court.
In the result these appeals are allowed and the decrees passed by the trial court restored with costs throughout.
One set of hearing costs.
Appeals allowed.

Output:
P died on July 14, 1932, leaving behind his widow, L as his heir.
On June 21, 1935, L executed a Zerpeshgi in favour of the respondents for an admittedly binding purpose, and on June 17, 1943, she sold to the appellant a portion of the properties which were the subject matter of the Zerpeshgi deed for the purpose of redeeming the Zerpeshgi and for certain other necessary purposes.
The respondents who were the reversioners 559 instituted a suit challenging the validity of the sale.
The trial court and the lower appellate court held that the sale was a proper one binding on the reversioners.
On second appeal, a Division Bench of the Patna High Court took a contrary view and allowed the appeal.
One of the judges while he did not disagree with the findings of fact of the courts below as to the necessity for the sale followed a decision of the same High Court to the effect that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of reversioners to redeem them.
A different view of the law had been taken in a later decision of that court, but the learned judge declined to follow that decision observing that the practice of that Court was either to follow the previous Division Bench ruling in preference to the later or to refer the case to a larger Bench for settling the position, but that in the present case it was not desirable to adopt the latter course.
The other learned judge was of the opinion that the sale deed was not supported by necessity.
Held, that the High Court was in error in holding that the sale deed in favour of the appellant was not binding on the reversioners.
When there is a mortgage subsisting on the property, the question whether the widow could sell it in discharge of it is a question which must be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper case.
What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties.
Hanooman Persaud vs Mussamat Babooee, , Vankaji vs Vishnu, Bom.
534 and Viraraju vs Vankataratnam, I.L.R. , relied on.
Dasrath Singh vs Damri Singh, A.I.R. 1927 Pat.
219, dis approved.
Lal Ram Asre Singh vs Ambica Lal, 1929 Pat.
216, approved.
Held, further, that when a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Where two conflicting decisions are placed before a later Bench, the better course for the latter is to refer the matter to a Full Bench without taking upon itself to decide whether it should follow the one Bench decision or the other.
Buddha Singh vs Laltu Singh, All. 604, Seshamma vs Venkata Narasimharao, I.I.R. , Bilimoria vs Central Bank of India, A.I.R. 1943 Nag.
340 and Virayya vs Venkata Subbayya, A.I.R. 1955 Andhra 215, con sidered.


Input:
URISDICTION: Writ Peti tion Nos.
30(1 and 30 1 of 1986.
( Under Article 32 of the Constitution of India).
WITH Criminal Appeal Nos.
374 A and 411 of 1986.
From the Judgment and Order dated 31 3 1986 of the Allahabad High Court in W.P. Nos. 1448 and 1405 of 1986.
A.K. Gupta for the Petitioners in W.P. Nos. 300 and 301 of 1986.
S.A. Syed and Shakil Ahmed for the Appellants in Crl.
A. Nos. 374A and 411 of 1986.
A.D. Singh, Ms. Rachna Joshi and Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by PATHAK, C.J.
I. The petitioners Fazal Ghosi and Wahid in the two writ petitions before us and the appellants Ayaz Ahmad and Riaz Ahmad in the two Criminal Appeals are ag grieved by the orders of detention made respectively in respect of them under sub s.(2) of section 3 of the .
The petitioners Fazal Ghosi and Wahid filed writ petitions in the High Court of Allahabad against the detention orders concerning them and those writ peti tions were dismissed.
They have now filed the present peti tions under Article 32 of the Constitution.
The appellants Ayaz Ahmad and Riaz Ahmad filed writ petitions in the High Court of Allahabad against the detention orders concerning them, and those writ petitions having been dismissed they have appealed here by special leave.
All the four cases have been heard together.
It is agreed between the parties that although separate orders of detention were made under sub section
(2) of section 3 of the against the various petitioners and appellants the grounds raised in this court against their detention orders are identical.
It appears that consequent upon the opening of the Ram Janam Bhumi temple at Ayodhya, Faizabad, there was consider able agitation 473 among the Muslim community.
According to the State Govern ment, several members of the community were returning from the mosque after their afternoon prayers, and at Bholanath Ka Kuan, Abdul Aziz Road, Lucknow they were addressed by Fazal Ghosi and his son Wahid in language inciting them to beat the police and the Police Armed Constabulary.
At anoth er place, Sarkata Nala, a large number of the Muslim commu nity are said to have been similarly addressed by the appel lants, Ayaz Ahmd and Riaz Ahmad.
It is alleged that in consequence the crowd commenced pelting stones and dis charged fire arms on the Government officials and the police personnel assembled there as a result of which they received injuries.
The petitioners and the appellants were arrested along with other persons, and a First Information Report was lodged in respect of each of them for offences under sec tions 147/148/149/307 and 332 of the Indian Penal Code.
The petitioners and the appellants applied for grant of bail, and while the bail applications were pending the District Magistrate, Lucknow, purporting to act under sub section
(3) of section 3 of the , served a detention order on February 20, 1986 on each of the four detenus.
This was followed on February 21, 1986 by service of the grounds of detention.
Learned counsel for the detenus challenges the detention orders on several grounds.
In our opinion, it is not neces sary to consider all the points raised because it appears to us that the cases can be disposed of on a short ground.
The contention on behalf of the detenus is that there was no material before the District Magistrate on the basis of which he could form the opinion that the detenus would act in future in a manner prejudicial to the maintenance of public order.
It is pointed out that the provides for preventive detention.
and preventive deten tion is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the statute.
There is no doubt that preventive detention is not intended as a punitive measure, as a cur tailment of liberty by way of punishment for an offence already committed.
Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the section.
In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of public order.
Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the miscon duct or do anything else which would be prejudicial to the maintenance of public order.
The District Magistrate, it is true, has stated that the detention 474 of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction.
We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material.
We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all.
In the circumstances.
the detention orders in respect of the four detenus must be quashed.
The writ petitions and the appeals are allowed, the order of detention in respect of each detenu is quashed, and the detenus are entitled to be set at liberty unless their detention is required in connection with other cases.
N.P.V. Petitions and appeals allowed.

Output:
Consequent upon the opening of the Ram Janam Bhumi Temple at Ayodhya, there was considerable agitation among the Muslim Community.
The Petitioners and appellants were arrested for inciting the members of the community to in dulge in violence and charged for offences under sections 147/148/149/307/332 of the Indian Penal Code.
While their bail applications were pending; the District Magistrate, purporting to act under sub.s.
(3) of section 3 of the , served detention orders on them.
Writ Petitions challenging the detention orders filed by the appellants were rejected by the High Court.
The Petitioners and appellants contended that the deten tion orders were bad for the reason that there was no mate rial before the District Magistrate on the basis of which he could form the opinion that they would act in future in a manner prejudicial to maintenance of public order.
Allowing the petitions and appeals, this Court, HELD: The power to detain under the Act can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in Section 3 thereof.
Preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed.
No doubt the satisfaction of the District Magistrate making the detention order is subjective in nature, but, even subjec tive satisfaction, must be based upon some pertinent materi al.
[473F G; 474A B] In this case there is no material to show that the detenus would act 472 in the future to the prejudice of the maintenance of public order.
Even if it is accepted that the detenus did address the assembly of persons and incited them to lawlessness, there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order.
[473G H]


Input:
Civil Appeal No. 883 and 898 905/75.
Appeals by Special Leave from the: Judgment and Order dated 20 2 75 of the Karnataka High Court in Writ Petition Nos.
5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828 and 5829 of 1974.
R.B. Datar for the Appellants in all the appeals.
V.P. Raman, Addl.
Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH J.
This judgment shall dispose of Appeals Nos. 883 and 898 to 905 of 1975 which are, directed against the common judgment dated February 20, 1975 of the High Court of Karnataka at Bangalore dismissing writ petitions Nos.
5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974 on the ground that the appellants had no right to maintain the same.
The circumstances leading to 'these appeals are: The appellants held the posts of Shambogues on hereditary basis under the Mysore Village Offices Act, 1908.
In writ peti tion No. 133 of 1959 entitled Gazula Daseratha Rama Rao vs State of A.P. & Ors.
(1) decided on December 6, 1960, this Court held that a law which recognised the custom by which a preferential right to, an office vested in the members of a particular family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised by law with regard to a heredi tary office must yield to a fundamental right and_section 6(1) of the Madras Hereditary Village Offices Act/II of 1895 in so far as it made discrimination on the ground of descent only was violative of the ' fundamental right under Article 16(2) of the Constitution and was void.
With a view to giving effect to tile principle settled by this decision, the Legislature of the.
then State of Mysore comprising the territories the erstwhile States of Mysore and Coorg and certain parts of the erstwhile Stales of Bombay, Hyderabad and Madras enacted the Mysore Village Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act ') abolishing all the hereditary village offices including the office of Shambogue or village Ac countant created under the Mysore Village Offices Act, 1908.
Pursuant to sub section (3) of section 1 which autho rise.d the State Government to fix a date for the commence ment of the Act, the Government of Mysore issued a notifi cation on January 9, 1963 notifying that the Abolition Act would come into force with effect from February 1, 1963.
(1) ; 1961 S C. 564.
6 112 SCI/77 628 Shortly after the according of the assent to the Aboli tion Act by the President on July 8, 1961, the Governor of Mysore flamed rules called the Mysore General Service (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Con stitution and other powers enabling him in that behalf.
These Rules, as evident from their title, were designed to regulate the recruitment, pay and other conditions of serv ice of Village Accountants.
Rule 10 of the 1961 Rules which was in the nature of a non obstante provision provided for the initial recruitment to the posts of Village Accountants to be made from amongst persons holding the posts of village officers on the date of commencement of those Rules provided that such persons had passed the S.S.L.C. examination or an equivalent examination and their age did not exceed 40 years on the said date.
By a proviso which was introduced in the year, 1963, it was provided that in the event of persons satisfying the qualifications mentioned in Rule 7 not being available even after the vacancies are twice advertised, the recruitment should be made from amongst persons holding the posts of village officers who were not more than 50 years of age on the date of commencement of the said Rules and who had passed the Lower Secondary or Vernac ular Final or equivalent examination.
By a notification issued on January 6, 1963, the Govern ment of Mysore directed the Deputy Commissioners to appoint persons recruited under the 1961 Rules as village account ants and relieve the then holders of their offices.
On the issue of the aforesaid notification dated January 9, 1963, a number of writ petitions under Article 226 of the Constitution were filed in the High Court challenging the legality and constitutional validity of the Abolition Act on the ground that it was a piece of colourable legislation.
During the pendency of the writ petitions, an ad interim order staying the operation of the aforesaid Notification dated January 9, 1963 was issued by the High Court.
As a consequence of the stay order, the appellants and a number of other persons who were holding tile posts of Shambogues under the Mysore Village Offices Act, 1908 had to be con tinued by the State Government in the posts held by them.
The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B.R. Shankaranarayana & Ors.
vs State of Mysore(1).
Thus the constitutional validity of the Abolition Act was finally upheld by the Court.
During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act ') which came into force on April 1, 1964.
Section 16 of the Act provides for the appointment of Vil lage Accountants and the continuance of village accountants hold the said posts immediately before the commencement of the Act.
Sub section (1) of section 16 lays down that, subject to the general orders of the State Government and the Divisional Commissioner, the Deputy Commissioner can appoint Village Accountants for villages or groups of vil lages.
Sub section (2) of section 16 provides that the (1) A.I.R. 1966 S.C. 1571.
629 persons holding the office of the Village Accountant before the commencement of the Act, shall be deemed to be Village Accountants for such villages till another person is ap pointed under sub section (1 ) of section 16.
Thus sub section (2) of section 16, it would be seen, was designed to cover the case of the persons who had perforce to be continued as Shambogues because of the aforesaid stay order issued by the High Court despite the abolition of those posts by the Abolition Act.
The 1961 Rules were repealed and replaced by another set of Rules called the Karnataka General Services (Reve nue.
Subordinate Branch) Village Accountants (Recruitment) Rules, 1970 (hereafter referred to as the 1970 Rules) made by the State Government in exercise of the powers conferred by sections 16 and 17 of the Act.
Rules 4 and 5 of the 1970 Rules which were amended from time to.
time stood as follows on the relevant date : "4.
Recruitment.
(1) Recruitment to the cadre of village Accountant shah be made by direct recruitment from amongst : (i) persons who have served as Village Offi cers; (ii) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i); (ii) persons who have been regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of the re cruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ; (iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of recruitment and working as Panchayat Secretaries who (a) have passed the Middle School examination or any other examination declared as equiva lent thereto by the State Government; and (b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if sufficient number of eligible persons are not available under (ii); 630 (c) are not more than 50 years of age as on 1st April, 1967; (iv) xx xx xx (v) others, if sufficient number of persons are not available under any of the above categories.
(2) No persons other than the persons referred to in categories (ii) and (iii) of sub rule (1) "shall be eligible for appoint ment under these rules unless he has passed the S.S.L.C. examination or any examination declared by State Government as equivalent thereto.
(3) The limit for appointment under sub rule (1) shall be (i) 33 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and (ii) 28 years in the case of others as on 1st January, 1970.
Provided that in the case of person who have served as Village Officer or as Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.
Provided further that in the case of local candidates, such age shall be as on 1st Janu ary, 1965: Explanation For the purpose of this rule "ViIIage Officer" means a person who held a 'Village Office ' other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961)." "5.
Committee for selection (1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commission er shall be the Secretary.
(2) The Committee shall call for applica tion for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Direct Recruitment by Selection) Rules, 1967.
(3) The decision of the Committee shall be final subject to the approval of the Division al Commissioner.
(4) The list approved by the Divisional Commissioner shall be published and appoint ments shall be made in order in which the names of persons selected are arranged in the said list.
" 631 Pursuant to the 1970 Rules, applications were invited by the Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Has san.
After sorting out the applications received in re sponse to the: advertisement, the Committee interviewed the applicants who. were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants.
This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition No. 1871 of 11972 entitled Komari Gowda vs State of Mysore & Ors.
and the Committee was directed.
to select the candidates afresh in accordance with law.
Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candi dates which was published in the Karnataka Gazette on May 30, 1974.
Thereafter, the Deputy Commissioner, ' Hassan issued orders of appointment of the candidates who were selected by the Recruitment Committee.
Some of the candi dates thus selected were posted as Village Accountants under section 16(2) of the Act to the villages in which the appellants were functioning.
As the.
appellants had to give up their posts in consequence.
of the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution, (ii) the selection and appointment of respondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under section 16(2) of the Act.
The writ petitions having been dismissed by the High Court as stated above.
, the appellants have come up in appeal to this Court.
The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions.
It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana & Ors.
vs State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons.
belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the afore said notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational 632 qualifications for the post in question.
The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.
The appeals accordingly fail and are dismissed but without any order as to costs.
P.H.P. Appeals dismissed.

Output:
The appellants held the post of Shambhogues on hereditary basis under the Mysore Village Offices Act 1908.
This Court in the case of Gowla Dasrath Ramarao held that a law which recognises the custom by which a preferential right to an office vested in the members of a particular family was not consistant with the fundamental right guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimina tion on the ground of descent only was violative of Article 16(2) of the Constitution and, therefore, void.
With a view to give effect to the said judgment of this Court Mysore Village Offices Abolition Act of 1961 was enacted abol ishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908.
The President gave his assent to the said Act.
Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to regulate the recruitment, pay and other conditions of service of Village Accountants.
Rule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Offi cers on the date of commencement of those rules provided they fulfilled certain educational qualifications and were below a certain age Challenge to the constitutional validi ty of the said Act was negatived by this Court in the case of B.R. Shankaranarayana & Ors.
vs State of Mysore AIR.
The State Legislature enacted the Karnataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continu ance of Village Accountants hold the said post immediately before the commencement of the Act.
Section 16(e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be deemed to be village Accountants for such villages till other persons were appointed.
The 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules.
Rules 4 and 5 lay down the eligibility of the persons for the ap pointment as Village Accountant .and the constitution of a Committee for selection and the method of selection.
The Recruitment Committee invited applications, interviewed the applicants who were eligible and prepared a list of selected Candidates and, thereafter, issued the order of appointment.
As the appellants had to give up their posts in consequence of the fresh appointments they filed the present writ peti tions impugning the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution and challenging the selection and appointment of respondents Nos. 3 to 191 as Village Ac countants and for a direction that they should be continued as Village Accountants.
The High Court dismissed the writ petitions.
Dismissing the appeals, HELD: 1.
Though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for invoking the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is well estab lished that a person who 627 is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary Village Offices having been upheld by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the.
prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution.
The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions.
[631 E H 632 A]