Input:
Appeal No. 2 of 1954.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated the 10th September, 1953, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953.
M. C. Setalvad, Attorney General for India (P. P. Naik and I. N. Shroff, with him) for the appellant.
M. K. Nambiar (Rajinder Narain, with him) for the respondent.
B. Sen and P. K. Bose for the Intervener (State of West Bengal).
May 13.
The circumstances under which the above Resolution came to be adopted may be briefly mentioned.
Consequent on the war, there was a phenomenal rise in the price of foodstuffs and of other essential commodities, and among the persons worst hit by it were the Government servants.
As a measure of relief to them, the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940.
The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees.
But this scheme was found to be unsuitable for employees of the Central Government, as the allowances granted by the Provincial Governments were not uniform.
On 10th May, 1946, the Central Government appointed a Central Pay Commission, hereinafter referred to as the Commission, to enquire into and 601 report on the conditions of service of its employees with particular reference to I 'the structure of their pay scales 'and standards of remuneration with the object of achieving a rationalisation, simplification and uniformity to the fullest degree possible.
" The Commission, which was presided over by Sir section Varadachariar, recommended by its report dated 3rd May, 1947, the grant of dearness allowance on a specified scale.
On 27th May, 1947, the Government of Central Provinces and Berar appointed a Pay Committee, hereinafter referred to as the Committee, "to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rule making control are concerned." By its report dated 22nd June, 1948, the Committee recommended the grant of dearness allowance on a scale which, though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem, was less than it as regards salaries of Rs. 400 per mensem or less.
These recommendations were accepted by the Government by its Resolution dated 16th September, 1948.
This difference in the result between the two scales not unnaturally caused considerable dissatisfaction among the employees concerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution.
In the petition it was alleged that "the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two fold slab and accepting the Government of India rates for one slab, i.e., for servants receiving salary over Rs. 400, and not accepting them in respect of the other slab, i.e., of servants drawing below Rs. 400, is highly discri minatory," that "the State Government servant has a right to be treated equally with the Central Government servant similarly situated," and that "every servant has these fundamental and natural rights and 77 602 the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates.
" The petitioner then prayed: "That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance, the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case, to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them." The Government contested the petition on the grounds, firstly, that the claim for dearness allowance was not justiciable, and secondly, that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did not violate article 14.
The learned Judges (Sinha C.J. and Bhutt J.) held that under the rules dearness allowance was placed on the same footing as pay, and that the claim relating thereto was therefore justiciable; and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on "no intelligible and reasonable basis," and that the Resolution dated 16th September, 1948, was therefore bad.
They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees concerned.
It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132(1) of the Constitution.
It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and not justiciable, and that neither a writ of mandamus nor any direction could be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is not hit by article 14 of the Constitution.
In our opinion, both these contention are well founded 603 On the first question, Rule 44 of the Fundamental Rules runs as follow: "Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor General in Council or the Governor in Council, as the case may be, and to the general rule that the amount of a compensatory allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient, a Local Government may grant such allowance to any Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn.
" Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much.
That being so, the prayer for mandamus is clearly misconceived, as that could be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent.
Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it.
It merely confers a power on the State to grant compassionate allowance at its own discretion, and no mandamus can issue to compel the exercise of such a power.
Nor, indeed, could any other writ or direction be issued in respect of it, as there is no right in the applicant which is capable of being protected or enforced.
The learned Judges of the High Court relied on certain rules which put dearness allowance on the, same footing as pay for certain purposes, and held on the authority of the decision in The Punjab Province vs pandit Tara Chand(1) that the present claim was justiciable.
But The Punjab Province vs Pandit Tara Chand was an action for recovery of arrears of salary, land it was held that under the law of this country which differed in this respect from that of England, arrears of salary were a debt due by the Government, that they could be attached in execution of a decree under section 60, Civil Procedure Code, as a debt, and that on that basis an action to recover the same was (1) 604 maintainable.
This decision was quite recently approved by this Court in State of Bihar vs Abdul Majid(1), wherein it was pointed out that salary was not in the nature of a bounty, and that whatever was recoverable by a Petition of Rights in England could be recovered by action in this country.
This question may therefore now be taken to be settled beyond controversy.
But we are not concerned in the present proceedings with any debt payable by the Government.
The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto.
The claim now put forward its to compel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and not a matter of right.
In England, no petition of right will lie in respect of such a claim.
The position is thus stated in Halsbury 's Laws of England, Volume IX, page 688, Note (s) @: " It is erroneous to suppose that a petition of right will lie for matters which are of grace and not of right.
[De Bode (Baron) vs R.(2).]" That is also the law in this country where an action is a substitute for a petition of right.
In the result, we must hold that the matters raised in the petition are not justiciable.
Mr. Nambiar, the learned counsel for the respondent, did not dispute the correctness of this position.
But he argued that when once the Government passed 'a Resolution fixing a scale of allowance under Rule 44, that would be law as defined in article 13(3)(a) of the Constitution, and if that law infringed, article 14, it could be declared void.
That is a contention which is clearly open to him, and the question therefore that falls to be decided is whether the Resolution dated 26th September, 1948, is bad as infringing article 14.
Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if; to I be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction (1) ; (2) 13 Q. B 364 exhibit Ch.
at P 387 605 of the rate from the lowest to the highest category.
No contention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article 14.
Secondly, within any given slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore, which again has not been attacked as discriminatory.
These being the features of the scheme, there can be no room for the contention that it has made any discrimination.
Mr. Nambiar does, not contend that there is anything in the scheme or in the Resolution adopting it, which bring s it within the prohibition enacted in article 14.
His contention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of.
over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates fixed by the Commission, and, instead, adopted different and lower rates, and that this was discrimination hit by article 14.
In other words, the impugned Resolution, though valid in itself as not infringing article 14, becomes void under that provision when it is taken in conjunction with the report of the Commission.
We do not find anything in article 14 which supports this somewhat startling contention.
Under the Constitution, the Union and the States are distinct entities, each having its own executive and Legislature, with their powers well defined.
Article 12 defines "the State" as including the Government and the Legislature of each of the States.
Article 13(2) enacts that the State shall not make any laws taking away, or abridging the rights conferred by Part III, and article 14 enacts that, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" On these provisions, the position is that when a law is impugned under article 13, what the Court has to 606 decide is whether that law contravenes any of the provisions of Part III.
If it decides that it does, it has to declare it void; if it decides that it does not, it has to uphold it.
The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned.
It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination.
But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different Legislatures.
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments.
The sources of authority for the two statutes being different, article 14 can have no application.
The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14.
It may no doubt ,sound hard that Government servants doing work of a similar kind and working, it may be, even in the same place, should receive different allowances; but the rights of the parties have to be decided on legal considerations, and it is impossible to hold that the Resolution in question is bad under article 14.
It was argued on behalf of the appellant that the assumption underlying the argument of the respondent with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation.
In the view we have taken on the applicability of article 14, this question has no practical importance; but as 607 all the materials have been placed before us, we may briefly express our opinion thereon.
In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the cost of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance.
In paragraph 83 they further observed that in fixing the scale on the basis of the cost of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were not including it in fixing the dearness allowance.
In paragraph 31, they observed that unlike the Commission they were taking into consideration the financial resources of the State in fixing the scale.
Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance; and if the two schemes produced the same results at some stages, that was due to coincidence and not to adoption of the report of the Commission by the 'Committee.
Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January, 195 1, and 6th October, 195 1, adopting the scale fixed by the Commission in respect of certain other categories.
That has no bearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination.
The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint; and in formulating the scheme which they did, they did not adopt the Report of the Commission, though they derived considerable assistance from it.
In the result, this appeal must be allowed and the petition of the respondent dismissed; but in the circumstances, there will be no order as to costs either here or in the Court below.
Appeal allowed.

Output:
The Government of Central Provinces and Berar (Now State of Madhya Pradesh) fixed in 1948 a scale of dearness allowance for its servants which though practically identical with the scale of dearness allowance fixed by Central Government in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less.
The petitioner State government servant challenged the validity of the order of the State Government on the ground that his fundamental right under article 14 of the Constitution had been violated inasmuch as he had a right to be equally treated with the Central Government Servants similarly situated.
Held, that under the provisions of Rule 44 of the Fundamental Rules it is a matter of discretion with the local Government whether it will grant dearness allowance to any Government servant and if so how much.
It imposes no duty on the State to grant it and therefore no mandamus can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in the Government servant which is capable of being protected or enforced.
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments.
The sources of authority for the two statutes being different, Article 14 can have no application.
Therefore 'the scale of dearness allowance sanctioned by the Central Government can furnish no ground for holding that the allowance sanctioned by the Government of Central Provinces and Berar is repugnant to Article 14.
The State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab, 600 The Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89), and State of Bihar V. Abdul Majid ([1954] S.C.R. 786) distinguished.


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Appeal No. 141 of 1959.
Appeal by special leave from the Award dated July 19, 1958, of the Fourth Industrial Tribunal, West Bengal, in Case No. VIII 240 (166)/57. C. K. Daphtary, Solicitor General of India, Vidya Sagar and B. N. Ghosh, for the appellants.
P. K. Sanyal and P. K. Chakravarty for R. C. Datta, for the respondents.
March 23.
The Judgment of the Court was delivered by DAS GUPTA, J.
On December 13, 1957, the Government of West Bengal referred under section 10 of the Industrial Disputes, Act the following dispute between M/S. Northbrook Jute Co., Ltd., and Dalhousie Jute Mills Who are appellants before us and their workmen: 47 366 " Do the proposals of rationalisation in the above two mills involve any increase in workload ? If so, what relief the workmen are entitled to ?" Almost a month before this the proposal of introducing a rationalisation scheme in time mills of these companies had been considered at an extraordinary meeting of the Works Committee and the Committee had agreed to the proposal.
A notice tinder section 9A of the was then given by the companies to the Unions of their workmen and it was because the workmen objected to the introduction of the rationalisation scheme that the dispute arose and was refer red by the Government to the Tribunal.
On December 16 when the above reference was pending before the Tribunal the management.
of these mills put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme.
Later the same day the mills declared a lock out.
Work was however resumed again in all departments excepting the weaving and finishing departments on December 20, and in these two departments on December 21, as a result of a settlement arrived at between the workmen represented by their Unions and the Mills as regards the introduction of the rationalisation scheme.
But a dispute arose as regards the payment of wages to workmen for their dues during the period when the mills were closed, viz., 16th December to 20th December in the weaving and finishing departments and 16th December to 19th December in all other departments.
This dispute was also referred to the Tribunal by an order of the Government dated February 1, 1958.
The earlier issue as regards the proposed introduction of the rationalisation scheme was also amended in view of what had happened in the meantime by substituting therefore : " Have the rationalisation effected in the above two mills since 16th December, 1957, involved any increase in the workload ? To what relief the workers are entitled to ?" We are no longer concerned with this issue as the decision of the Tribunal thereon which is against the workmen is no longer disputed.
As regards the other two disputes the Tribunal has made an award in favour of the 367 workmen that they are entitled to wages for the period of absence above mentioned.
On this question the workmen 's case before the Tribunal was that the reason that workmen could no do any work on the days in question was the illegal look out by the employers; the employer 's case was that the workmen had struck work illegally, and so the closure of the mills on the 16th of December after such strike was not illegal or unjustified.
The Tribunal was of opinion that the eimloyer 's attempt to put the rationalisation scheme into effect on the 16th December was a contravention of section 33 of the , and so, the workmen 's refusal to works in accordance with that scheme was not an illegal strike and the employer 's closure of the mills was illegal.
Learned counsel for the employer mills has tried to convince us that they had acted in accordance with law, in introducing the rationalisation scheme on the 16th December.
He pointed out that the Works Committee duly constituted under the Act had considered the scheme and approved of it, and argued that as the workmen 's representatives on the Works Committee bad agreed to the scheme, the workmen themselves should be taken to have agreed to it.
That the workmen 's representatives on the Works Committee agreed to the introduction of the scheme by the companies " whenever they desired " is established by a copy of the resolution of the Works Committee.
It has to be noticed however that the workmen 's representatives on the Works Committee do not represent the workmen for all purposes, but only for the purpose of the functions of the Works Committee.
Section 3(2) of the Act sets out the functions of the Works Committee in these words: " It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end to comment upon matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters.
" 368 The language used by the Legislature makes it clear that the Works Committee was not intended to supplant or supersede the Unions for the purpose of collective bargaining ; they are not authorised to consider real or substantial changes in the conditions of service; heir task is only to smooth away frictions that might rise between the workmen and the management in day to day work.
By no stretch of imagination can it be said that the duties and functions of the Works Committee included the decision on such an important matter as the alteration in the conditions of service by rationalisation. " To promote measures for securing and preserving amity and good relations between the employer and workmen " is their real function and to that end they are authorised to " comment upon matters of their common concern or interest and endeavour to compose any material difference of opinion in respect of such matters," The question of introduction of rationalisation scheme may be said to be a matter of common interest between the employers and workmen; but the duty and authority of the Works Committee could not extend to anything more than making comments thereupon and to endeavour to compose any material difference of opinion in respect of such matters.
Neither " comments" nor the " endeavour " could be held to extend to decide the question on which differences have arisen or are likely one way or the other.
It was rightly pointed out by the Labour Appellate Tribunal in Kemp and Company Ltd. vs Their Workmen( ') that: " the Works Committees are normally concerned with problems arising in the day to day working of the concern and the functions of the Works Committee are to ascertain the grievances of the employees and when occasion arises to arrive at some agreement also.
But the function and the responsibility of the works committee as their very nomenclature indicates cannot go beyond recommendation and as such they are more or less bodies who in the first instance endeavour to compose the differences and the final decision rests with the union as a whole.
" The fact that the 'workmen 's representatives on the Works Committee agreed to the introduction of the (1) 369 rationalisation scheme is therefore in no way binding on the workmen or their Union.
The next argument was that whatever alteration was effected in the conditions of service, was made, on the date when notice under section 9A was given and that being before the 13th December there was no contravention of section 33.
There is in our opinion no substance in this contention, Section 9A in accordance with which the notice was given provides that " No employer who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule, shall effect such change (a) without giving to the workmen likely to be affected by such a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty one days of giving such notice;".
With the proviso to the section we are not concerned.
What is important to notice is that in making this provision for notice the Legislature was clearly contemplating three stages.
The first stage is the proposal by the employer to effect a change; the next stage is when he gives a notice and the last stage is when he effects the change in the conditions of service on the expiry of 21 days from the date of the notice.
The conditions of service do not stand changed, either when the proposal is made or the notice is given but only when the change is actually effected.
That actual change takes place when the new conditions of service are actually introduced.
It necessarily follows that in deciding for the purpose of section 33 of the Act, at what point of time the employer " alters " any conditions of service, we have to ascertain the time when the change of which notice under section 9A is given is actually effected.
If at the time the change is effected, a proceeding is pending before a Tribunal, section 33 is attracted and not otherwise.
The point of time when the employer proposes to change the conditions of service and the point of time when the notice is given are,equally irrelevant.
It was further contended that in any case, the alteration was not to the prejudice of the workmen.
How such a contention can be seriously made is difficult to 370 understand.
The whole basis of the scheme was so to allocate the machines to workmen, as to enable fewer workmen to work the machines than the number previously required so that surplus workmen could be discharged.
The object was to decrease the cost of production.
The method adopted for attaining the object was to obtain more work from the workmen for approximately the same wages.
However laudable the object be, it cannot be doubted for a moment that the scheme prejudiced the workmen seriously.
Mr. Fraser, the company 's witness, stated in his evidence that while previously for every machine in the batching department, there were two hands, now there are two hands for two machines.
In giving the reasons for the introduction of the scheme, he said " we had surplus labour in both the mills.
The company was losing heavily.
Till then we depended on natural wastage and did not think of rationalisation; in November last year, the decision was taken to take action on rationalisation. " Rationalisation which was introduced had therefore two effects first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload.
The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.
The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal.
The Tribunal has therefore rightly held that this introduction was a contravention of section 33.
Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of section 33 the workmen 's remedy lay in applying under section 33A, and that they were not entitled to strike work.
Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of section 33 to apply to the Tribunal for relief; but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service, even though these were in clear contravention of law.
When they refused to do the additional work which the 371 rationalisation scheme required them to do, they refused to do work, which the employer had no right in law to ask them to do.
It is difficult to say that this amounted to a " strike" by the workmen; but even if it could be said to be a " strike " such strike was certainly not illegal or unjustified.
Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock out, and the workmen, unable to" work in consequence of the lockout, are entitled to wages for the period of absence, used by such lock out.
The appeal is therefore dismissed with costs.
Appeal dismissed.

Output:
A rationalisation scheme in the mills of the appellant com panies was agreed to by the Works Committee and a notice under section 9A of the , was given to the 365 Union of their workmen.
The workmen, however, objected to the introduction of the scheme and the dispute was referred by the Government to the Tribunal on December 13, 1957.
On December 16, the management of the companies put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme.
Later, the same day, the mills declared a lock out.
Work was, however, resumed a few days later as a result of a settlement, and a dispute arose as to whether the workmen were entitled to the payment of wages for the period during which the mills were closed: Held, (1) that the workmen 's representatives on the Works Committee represented the workmen only for the purpose of the functions of the Works Committee and that the approval of the scheme of rationalisation by the Works Committee was not binding on the workmen or their Union.
Kemp and Company Ltd. vs Their Workmen, , approved.
(2) that the introduction of a rationalisation scheme was an alteration of conditions of service to the prejudice of the workmen.
(3) that the alteration of conditions of service was made not when notice under section 9A of the was given but on December 16, when the rationalisation scheme was put into operation, and that as it was done when the reference was pending before the Tribunal, it was a contravention of section 33 of the Act.
(4) that the closure of the mills in the circumstances of this case by the employer amounted to an illegal lock out and that the workmen unable to work in consequence of the lock out were entitled to wages for the period of absence caused by such lock out.


Input:
Civil Appeal Nos.
1450 1458 of 1990.
From the Judgment and Order dated 21.11.1988 of the Madras High Court in W.A. Nos. 864 to 870 of 1988 and W.P. Nos. 1600 and 1601 of 1986.
Narayanswamy, N. Balasubramaniam and A.T.M. Sampath for the Appellant.
M. Ramamurthy, Mrs. C. Ramamurthy, M.A. Krishnamoorthy, 639 for the Respondents.
R.C. Paul appeared in person.
These are appeals by special leave and are directed against a common judgment of the Madras High Court delivered in a group of writ appeals and a writ petition.
E.I.D. Parry (India) Ltd. (hereinafter referred to as `the employer ') has one of its units located at Ranipet in Tamil Nadu State where sanitary ware, super phosphate and insecticides are manufactured.
Some of its retiring employees filed applications under section 33 C(2) of the (`1947 Act ' for short) before the Labour Court at Madras claiming pension by alleging that payability of pension was a condition of service and the employer had stopped it without any justification and without giving notice under section 9 A of the .
The President Officer of the 2nd Additional Labour Court, Madras, allowed the same by his order dated 30th May, 1983, after computing the amounts.
The employer preferred six writ petitions.
In the meantime the same dispute had been referred to the Industrial Tribunal and it answered the reference against the employees by award dated 13th February, 1985.
The award was assailed before the High Court by the Union by filing of the seventh writ petition.
All the seven writ petitions were heard by a learned Single Judge who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the labour union challenging the award of the Industrial Tribunal.
Writ appeals were carried against the Single Judge 's decision.
The main controversy before the Division Bench was as to whether pension, or as is referred to by the parties, "retiring allowance" was payable to the employees.
This dispute has a historical backdrop to which we may now advert.
Under General Office Order No. 26 dated Ist December, 1943 "retiring allowances" were provided for.
The Office Order provided that normally only employees with thirty years ' service or more would be eligible to receive "Retiring Allowance".
The Board reserved the right to alter the scale of "retiring allowance".
either generally or in respect of individual employees and had the authority to sanction `retiring allowance ' when first granted and subsequent payment became a routine matter subject to annual review.
640 Gratuities were also provided under the Office Order by saying that all permanent employees (other than workers who qualify for gratuities as per Factory Certified Standing Order) who were in the Company 's service prior to 1.1.1947 and who do not qualify for Retiring Allowance on retirement, will be eligible for gratuity on finally leaving the Company 's service subject to one or other of the prescribed conditions being fulfilled.
In all four alternatives were provided.
Clause (4) indicated that employees recruited on or after 1.1.1947 would not be entitled to any gratuity.
There was a Memorandum of Settlement between the parties which may be referred to as the settlement of 1956.
Clause (6) thereof related to gratuity and provided: "Gratuity shall in future be payable by the company in accordance with the following rules: (a)(i) Where, irrespective of the length of his past service, an employee dies in service, or is retired on a medical certificate acceptable to the company, or is retired by the company on reaching the age of superannuation, he shall be entitled to gratuity calculated at the rate of one month 's basic salary for each completed year of service, and pro rata for any partly completed year of his service ,subject to a maximum of 15 months ' basic salary if his service is less than 30 years, together with half of one month 's basic salary for each completed year of service in excess of 30 years and pro rata for any partly completed year of service in excess of 30 years. . . (d) Employees in service prior to Ist January, 1947 may opt, at the time of leaving service, either for: (i) Gratuity calculated in accordance with these rules or in accordance with the current provisions of General Office Order No. 26, whichever he prefers, or (ii) in lieu of gratuity, a retiring allowance calculated in accordance with the current provisions of General Office Order No. 26.
" This settlement as a fact incorporated the relevant part of the Office Order.
641 The came into force with effect from September, 1972 and payment of gratuity became statutory.
When that Act came into force, the Employer and the Employees ' Union jointly applied to the Government for exemption from the provisions of the statute.
The exemption was, however, not granted.
Payability of gratuity is no longer in dispute.
What is challenged is the claim of the workmen to retiring allowance (pension) under Office order No. 26.
The stand of the employees has been that the retiring allowance under General Office Order No. 26 has not been substituted by the 1956 settlement and they are, subject to being qualified, entitled to the benefit of pension and the statutory advantage of gratuity.
It is a fact that the settlement does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6(d) above.
It is not in dispute that the retiral benefit (pension) was payable to all qualified employees as a matter of practice.
If under the settlement that was not done away with, the benefit arising out of General Office Order No. 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension.
The Appellate Bench of the High Court has found that gratuity provided under the settlement was not a substitute of pension.
Mr. Narayanaswamy, learned senior counsel appearing in support of the appeals took us through the various documents and placed the matter at considerable length and with lucidity.
He even relied on what he described as the prevailing practice between 1956 and 1972 the settlement and the Gratuity Act when no retiral benefit was either claimed or paid.
We have, however, not been able to see any defect in the reasoning of the Division Bench decision of the High Court where it has ultimately come to the conclusion that the settlement had not substituted gratuity for pension.
We find that by way of an interim measure this Court by an order dated 5th May, 1989 had directed the employer to pay the pension to the employees in accordance with the order of the High Court with effect from Ist May, 1989 and that from the record appears to have been paid.
A petition had been filed in this Court on 23rd April, 1990 by the employer for modification of the condition indicated in the order granting special leave and we had heard counsel for both the sides on the said petition.
We had made it clear at the hearing of the petition for modification of the order granting special leave that the question as to payability of retirement benefit after the 1956 settlement would be examined.
The total number of employees involved in this dispute was 642 about 347.
Many of them had not only retired but had also died and in respect of those who were dead it would be a question of the benefits up to the date of death of the respective employees to be paid to their legal representatives.
Mr. Narayanaswamy had emphatically contended that what was being decided was not a claim of 347 employees but it had its repercussion on the industrial peace between the employer and the employee at other places.
We would like to make it clear that we have gone into the question confined to the claim to the employees of the Ranipet factory and not the liability of the employer generally, Besides, Mr. Narayanaswamy had also told us at the hearing that there are special features in the arrangement in regard to employees elsewhere.
We are satisfied that the Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and, therefore, the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956, The High Court rightly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petitions under section 33 C(2) of the .
We uphold the judgment of the High Court and dismiss these appeals.
The employees had asked for award of interest on their dues.
The challenge of the employer was not groundless and we do not think in the facts of these cases the employees or their legal representatives would be entitled to interest.
We hope and trust that the employer would not liquidate its liability without delay by satisfying the orders of the Labour Court and the claims of the workmen or their legal representatives as and when made.
A sum of Rs. 10,000 had been given by the employer to Sri Pant for the Union to contest these matters and he has been paid the amount under this Court 's order.
No order for further courts.
T.N.A. Appeals dismissed.

Output:
The General Office Order No. 26 dated 1.12.1943 of the Appellant Company provided that employees with 30 years ' service or more would be eligible to receive "Retiring Allowance" (pension).
The said office order also provided that all permanent employees who were in the Company 's service prior to 1.1.1947 and who do not qualify for retiring allowance on retirement, will be eligible for gratuity on finally leaving the Company 's service subject to the prescribed conditions being fulfiled.
In 1956 a memorandum of settlement was signed by the appellant company and the Employees ' Union under which the employees in service prior to 1.1.47 were required to opt at the time of leaving service either for gratuity or in lieu of the gratuity the retiring allowance.
Later the came into force and the payment of gratuity became statuory.
The employer and the Employees ' Union jointly applied to the Government for exemption from the provisions the statue which was refused.
Some of the retiring employees of company filed applications under Section 33 C(2) of the before the Labour Court claiming pension by alleging that payability of pension was a condtion of service and the employer had stopped it without any Justification.
The Labour Court allowed the applications.
Against the 638 order of the Labour Court the employer preferred six writ petitions.
In the meantime the same dispute was referred to the Industrial Tribunal and by an award the Tribunal answered the reference against the employees.
The Employees ' Union challenged the award by filling a writ petition in the High Court.
All the writ petitions were heard by a learned single judge of the High Court who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the Labour Union challenging the award of the Tribunal.
Writ appeals were carried against the single Judges ' decision.
The Appellate Bench of the High Court held that gratuity provided under the settlement was not a substitute of pension and the claim of pension was available to employees notwithstanding the settlement.
Hence this appeal by the employer company.
Dismissing the appeals, this Court, HELD: The 1956 settlement between the parties does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6(d) of the settlement.
The retiral benefit (pension) was payable to all qualfied employees as a matter of practice.
If under the settlement that was not done away with, the benefit arising out of General Office order No. 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension.
The Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and, therefore, the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956.
The High Court rigtly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petition under section 33 C(2) of the 1947 Act.
[641C D, 642C D]


Input:
Appeal No. 153 of 1956.
Appeal from the judgment and order dated November 3, 1954, of the Punjab High Court in Civil Writ No. 253 D of 1954.
Veda Vyasa, section K. Kapur, K. K. Jain and Ganpat Rai, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, H. R. Khanna and T. M. Sen, for the respondents.
935 1960.
October 3.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by certificate is directed against the order of the High Court of Judicature of the State of Punjab dismissing the petition filed by the appellant under article 226 of the Constitution.
The facts giving rise to this appeal may be briefly stated.
The appellant is at present a resident of Barmer in the State of Rajasthan.
But before 1947 he was living in a place which is now in Pakistan.
On June 22, 1951, the Deputy Superintendent, Land Castoms Station, Barmer, conducted a search of the appellant 's house and recovered therefrom the following ten articles : Articles seized.
Weight Estimated value.
Rs. 1.
Silver slab.
2600 tolas 5,200/ 2. 29 Sovereigns 2,262/ (King Ed. VII).
3. 9 pieces of gold bullion 201 tolas and 9 mashas.
22,193/ 4.
4 pieces of silver bullion 114 tolas.
230/ 5.
Uncurrent silver coins numbering 575.
865/ 6.
Gold bars.
49 tolas and 9 mashas 5,475/ 7.
255 Phials of liquid gold.
9,875/ 8.
Torches 23. 9.
Playing cards 3 Dozens 400/ 10.Glass beads 48 packets.
Total. 46,500/ On July 14, 1951 the Assistant Collector, Ajmer, gave notice ' to the appellant to show cause and explain why the goods seized from him should not be confiscated under section 167(8) of the Sea Customs Act and section 7 of the .
The appellant in his reply 936 stated that items to 5 supra were brought by him from Pakistan after the partition of the country in 1947 and that items 6 to 10 were purchased by him bonafide for value in Barmer.
On October 27, 1951, the appellant appeared before the Collector of Central Excise, who made an enquiry, and admitted before him that items 6 to 10 were smuggled goods from Pakistan, but in regard to the other items be reitera ted his plea that he originally brought them from Pakistan in the year 1947.
The Collector of Central Excise held that the appellant bad failed to establish that items 1 to 5 had been brought by him to India in the year 1947 and he also did not accept the plea of the appellant in regard to items 6 to 10 that he was a bonafide purchaser of them.
In the result he held that all the goods were imported into India in contravention of, (i) section 3 of the Import Export Control Act read with sections 19 and 167(8) of the Sea Customs Act, (ii) sections 4 and 5 of the read with section 7 thereof.
He made an order of confiscation of the said articles under section 167(8) of the Sea Customs Act and section 7 of the ; but under section 183 of the Sea Customs Act he gave him an option to redeem the confiscated goods within four months of the date of the order on payment of a sum of Rs. 25,000.
In addition he imposed a penalty of Rs. 1,000 and directed the payment of import duty leviable on all the items together with other charges before the goods were taken out of customs control.
Aggrieved by the said order, the appellant preferred an appeal to the Central Board of Revenue.
The Central Board of Revenue agreed with the Collector of Central Excise that the onus of proving the import of the goods in question was on the appellant.
In regard to items 1 to 5, it rejected the plea of the appellant mainly on the basis of a statement alleged to have been made by him at the time of seizure of the said articles.
In the result the appeal was dismissed.
The revision filed by the appellant to the Central Government was also dismissed on August 28, 1953.
Thereafter the appellant filed a writ petition under article 226 of the Constitution in the High Court 937 of Punjab but it was dismissed by a division bench of the High Court on November 3, 1954.
Hence this appeal.
It would be convenient to deal with this appeal in two parts one in regard to items 1 to 5 and the other in regard to items 6 to 10.
The decision in regard to items 1 to 5 turns purely on the question of onus.
The Collector of Central Excise as well as the Central Board of Revenue held that the onus of proving the import of the goods lay on the appellant.
There is no evidence adduced by the customs authorities to establish the offence of the appellant, namely, that the goods were smuggled into India after the raising of the customs barrier against Pakistan in March 1948.
So too, on the part of the appellant, except his statement made at the time of seizure of the goods and also at the time of the inquiry that he brought them with him into India in 1947, no other acceptable evidence has been adduced.
In the circumstances, the question of onus of proof becomes very important and the decision turns upon the question on whom the burden of proof lies.
This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution.
But it cannot be denied that this relevant provisions of the Sea Customs Act and the are penal in character.
The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned ; see sections 168 and 171A of the Sea Customs Act and sections 5 and 7 of the .
To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply.
If so, the burden of proof is on the customs authorities and they have to 938 bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence.
In the present case no such evidence is forthcoming; indeed there is no tittle of evidence to prove the case of the customs authorities.
But it is said that the onus shifted to the appellant for three reasons, namely, (i) by reason of the provisions of section 178A of the Sea Customs Act; (ii) by reason of section 5 of the ; and (iii) by reason of section 106 of the Evidence Act.
Section 178A of the Sea Customs Act does not govern the present case, for that section was inserted in that Act by Act No. XXI of 1955 whereas the order of confiscation of the goods in question was made on January 18, 1952.
The section is prospective in operation and cannot govern the said order.
Nor does section 5 of the apply to the present case.
Under section 5(1) of the said Act, "Every person desiring to pass any goods by land, out of or into any foreign territory shall apply in writing for a permit for the passage thereof, to the Land Customs Officer incharge of a land customs Station By sub section
(2) of section 5 of the said Act, if the requisite duty has been paid or the goods have been found by the Land Customs Officer to be free of duty, the Land Customs Officer is empowered to grant a permit.
Under sub section
(3) thereof, " Any Land Customs Officer, duly empowered by the Chief Customs authority in this behalf, may require any person in charge of any goods which such Officer has reason to believe to have been imported, or to be about to be exported, by land from, or to, any foreign territory to produce the permit granted for such goods; and any such goods which are dutiable and which are unaccompanied by a permit or do not correspond with the specification contained in the permit produced, shall be detained and shall be liable to confiscation." This section has no bearing on the question of onus of proof.
This section obviously applies to a case where a permit is required for importing goods by land from a foreign country into India and it empowers the Land Customs Officer, who has reason to believe that any 939 goods have been imported by land from any foreign territory, to demand the permit and to verify whether the goods so imported correspond with the specification contained in the permit.
If there was no permit or if the goods did Dot correspond with the specification contained in the permit, the said goods would be liable to be detained and confiscated.
The application of this section is conditioned by the legal requirement to obtain a permit.
If no permit is necessary to import goods into India, the provisions of the section cannot be attracted.
In the present case the customs barrier was established only in March, 1948, that is, after the said items of goods are stated by the appel lant to have been brought into India.
We cannot also accept the contention that by reason of the provisions of section 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 1947.
Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts.
But it may be assumed that the principle underlying the said section is of universal application.
Under that section, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
This Court in Shambu Nath Mehra vs The State of Ajmer (1), after considering the earlier Privy Council decisions on the interpretation of section 106 of the Evidence Act, observed at p. 204 thus: "The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." If section 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked.
If so, it follows that the onus to prove the case against the appellant is on the customs authorities and they failed to discharge that burden in respect of items 1 to 5.
The order of confiscation relating to items 1 to 5 is set aside.
Before closing this aspect of the case, some observations have to be made in respect of the manner in (1) ; 940 which the statement given by the appellant when the goods were seized was used against him by the customs authorities.
It would be seen from the order of the Collector of Central Excise as well as that of the Central Board of Revenue that they had relied upon the statement alleged to have been made by him at the time the search was made in his house in order to reject his case that he brought some of the items of goods into India in the year 1947.
The appellant in his reply to the show cause notice complained that his statement was taken in English, that he did not know what was recorded and that his application for inspection and for the grant of a copy of his statement was not granted to him.
It does not appear from the records that he was given a copy of the statement or that he was allowed to inspect the same.
In the circumstances we must point out that the customs authorities were not justified to rely upon certain, alleged discrepancies in that statement to reject the appellant 's subsequent version.
If they wanted to rely upon it they should have given an, opportunity to the appellant to inspect it and, at any rate, should have supplied him a copy thereof.
Coming to items 6 to 10, we have no reason to reject, as we have been asked to do, the statement made in the order of the Collector of Central Excise dated October 27, 1951, that the appellant accepted that items 6 to 10 were smuggled goods from Pakistan.
It would have been better if the customs authorities had taken that admission in writing from the appellant, for that would prevent the retraction of the concession on second thoughts.
That apart, it is more satisfactory if a body entrusted with functions such as the customs authorities are entrusted with takes that precaution when its decision is mainly to depend upon such admission.
But in this case, having regard to the circumstances under, and the manner in, which the said concession was made, we have no reason to doubt the correctness of the statements of fact in regard to this matter made in the orders of the customs authorities.
If so, it follows that the finding of the customs authorities that the appellant purchased the said items, which were smuggled goods, should 941 prevail.
The order of confiscation of these five items will, therefore, stand.
Even so, it is contended by the learned counsel for the appellant that the customs authorities went wrong in imposing a penalty on him under section 167(8) of the Sea Customs Act.
The said section reads: " If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction. . such goods shall be liable to con fiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees." The appellant 's argument is that though he purchased the said smuggled goods he is not concerned with the importation of the goods contrary to the prohibition or restriction imposed by or under Ch.
IV of the Sea Customs Act.
The 'offence consists in importing the goods contrary to the prohibition and, therefore, the argument proceeds, a person, who has purchased them only after they were imported, is not hit by the said section.
There is some force in this argument, but we do not propose to express our final view on the matter as the appellant is liable to the penalty under section 7(1)(c) of the .
The said section reads: " Section 7 (1): Any person who (c)aids in so passing or conveying any goods, or, knowing that any goods have been so passed or conveyed, keeps or conceals such goods, or permits or procures them to be kept or concealed, shall be liable to a penalty not exceeding, where the goods are not dutiable, fifty or, where the goods or any of them are dutiable, one thousand rupees, and any dutiable goods in respect of which the offence has been committed shall be liable to confiscation.
" In this case the finding is that the appellant with the 120 942 knowledge that the goods had been smuggled into India kept the goods, and, therefore, he was liable to penalty under that section.
We hold that the penalty was rightly imposed on him.
It is then contended that the Collector of Central Excise had no jurisdiction to impose conditions for the release of the confiscated goods.
The Collector of Central Excise in his order says, " In addition the import duty leviable on all these items together with other charges, if any payable, should be paid and necessary formalities gone through before the goods can be passed out of Customs Control ".
In Shew.
pujanrai Indrasanrai Ltd. vs The Collector of Customs (1), a similar question arose for consideration of this Court.
There by an impugned order the Collector of Customs imposed two conditions for the release of the confiscated goods, namely, (1) the production of a permit from the Reserve Bank of India in respect of the gold within four months from the date of despatch of the impugned order, and (2) the pay ment of proper customs duties and other charges leviable in respect of the gold within the same period of four months.
This Court held, agreeing with the High Court, that the Collector of Customs had no jurisdiction to impose the said two conditions.
The learned Additional Solicitor General concedes that the said decision applies to the present case.
We do not, therefore, express any view whether that decision can be distinguished in its application to the facts of the present case.
On the basis of the concession we hold that the conditions extracted above, being severable from the rest of the order, should be deleted from the said order of the Collector of Central Excise.
Learned counsel for the appellant then argues that the option given in the said order to the appellant to redeem the confiscated goods for home consumption within four months of the order on payment of Rs. 25,000 was based upon the validity of the confiscation of all the ten items and, as this Court now holds that confiscation was bad in respect of items 1 (1) ; 943 to 5, the amount of the penalty of Rs. 25,000 should proportionately be reduced.
There is justification for this contention.
But we cannot reduce the amount, as under section 183 of the Sea Customs Act the amount has to be fixed by the concerned officer as he thinks fit.
But as the basis of the order partially disappears, we give liberty to the appellant to apply to the customs authorities for giving him an option to redeem the confiscated goods on payment of a lesser amount, having regard to the changed circumstances.
In the result, the appeal is allowed in part and the order of the Collector of Central Excise is accordingly modified in terms of the finding given by us.
As the parties succeeded and failed in part, they are directed to bear their own costs.
Appeal partly allowed.

Output:
The appellants house was searched on June 22, 1951, by the Customs authorities and ten articles were recovered therefrom.
In the inquiry before the Collector the appellant stated that the first five articles had been brought by him in 1947 from Pakistan after partition and that with respect to the other five articles he was a bona fide purchaser thereof.
The Collector held that the appellant had failed to establish his case and held that the goods were imported into India in contravention Of section 3, Import Export Control Act read with sections 19 and 167(8), Sea Customs Act and sections 4 and 5 Land Customs Act read with section 7 thereof.
This decision was upheld on appeal by the Central Board of Revenue and by the Central Government on revision.
The appellant contended that: (i) the onus of proving that the first five articles were smuggled goods was on the department which it had failed to discharge, and (2) even if the other five articles which he purchased were smuggled goods he was not concerned with their importation.
Held, that the onus was on the authorities to establish that the first five articles were imported into India after March 1948, when the customs barrier was put up for the first time between India and Pakistan, and that the authorities having failed to adduce any evidence to prove this fact the appellant could not be held guilty of any of the offences charged.
The onus did not shift by virtue Of section 178A, Sea Customs Act or section 5, Land Customs Act, as the former section was not in operation at the relevant time and the latter section was not applicable to the facts of this case ; nor did the onus shift by virtue of section 106, Evidence Act, as that section could not be used to undermine the well established rule that the burden was on the prosecution and never shifted.
Shambu Nath Mehra vs The State of Ajmer, ; , followed.
With respect to the other five articles even if the appellant was right in his contention that he was not concerned in their importation he was liable to the penalty under section 7(1)(c), , for keeping the articles knowing them to be smuggled goods.


Input:
Appeal No. 182 828 of 1975.
Appeal by Special Leave from the Judgment and Order dated the 19th March, 1975 of the Bombay High Court in First Appeal No. 524 of 1966 from original decree.
R. B. Datar for the Appellant.
V. N. Ganpule and (Mrs.) V. D. Khanna for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
It will be easier, with the help of the following pedigree to understand the point involved in this appeal Khandappa Sangappa Magdum Hirabai (Plaintiff) Gurupad Biyawwa Bhagirathibai Dhundubai Shivapad (Deft. 1) (Deft. 3) (Deft.
4)1 (Deft. 5) (Deft. 2) Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai who is the plaintiff, two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5.
On November 6 , 1962 Hirabai filed special civil suit No. 26 of 1963 in the court of the Joint Civil Judge, Senior Division, Sangli for partition and separate possession of a 7/24th share in two houses, a land, two shops avoid movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons.
If a partition were to take place during Khandappa 's lifetime between himself and his two sons, the plaintiff would have got 1/4th share in the joint family properties, the other three getting 1/4th share each.
Khandappa 's 1/4th share would devolve upon his death on six sharers, the plaintiff and her five children, each having a 1/24th share therein.
Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share in the joint family properties.
That, in short, is the plaintiffs case.
Defendants 2 to 5 admitted the plaintiff 's claim, the suit having H been contested by defendant 1, Gurupad, only.
He contended that the suit properties did not belong to the joint family, that they were Khandappa 's self requisitions and that, on the date of Khandappa 's 764 death in 1960 there was no joint family in existence.
He alleged that Khandappa had effected a partition of the suit properties between himself and his two sons in December 1952 and December 1954 and that, by a family arrangement dated March 31, 1955 he bad given directions for disposal of the share which was reserved by him for himself in the earlier partitions.
There was, therefore, no question of a fresh partition.
That, in short, is the case of defendant 1.
The trial court by its judgment dated July 13, 1965 rejected defendant 1 's case that the properties were Khandappa 's self acquisitions and that he had partitioned them during his lifetime.
Upon that finding the plaintiff.
became indisputably entitled to a share in the joint family properties but, following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda(1) the learned trial judge limited that share to 1/24th, refusing to add 1/4th and 1/24th together.
As against that decree, defendant 1 filed first appeal No. 524 of 1966 in the Bombay High Court, while the plaintiff filed cross objections.
By a judgment dated March 19, 1975 a Division Bench of the High Court dismissed defendant 1 's appeal and allowed the plaintiff 's cross objections by holding that the suit properties belonged to the joint family, that there was no prior partition and that the plaintiff is entitled to a 7/24th share.
Defendant I has filed this appeal against the High Court 's judgment by special leave.
Another Division Bench of the Bombay High Court in Rangubai Lalji vs Laxman Lalji(2) had already reconsidered and dissented from earlier Division Bench judgment in Shiramabai Bhimgonda(1) In these two cases, the judgment of the Bench was delivered by the same learned Judge, Patel J.
On further consideration the learned Judge felt that Shiramabai(1) was not fully argued and was incorrectly decided and that on a true view of law, the widow 's share must be ascertained by adding the share to which she is entitled at a notional partition during her husband 's life time and the share which she would get in her husband 's interest upon his death.
In the judgment under appeal, the High Court has based itself on the judgment in Rangubai Lalji(2) endorsing indirectly the view that Shiramabai(1) was incorrectly decided.
Since the view of the High.
Court that the suit properties belonged to the joint family and that there was no prior partition is well founded and is not seriously disputed, the decision of this appeal rests on the interpretation of Explanation 1 to section 6 of the Hindu Succession Act, (30 of 1956).
That section reads thus "6.
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property (1)(1963)66Bom.
L.R.351.
(2) 765 shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such a female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I. For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.
Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
" The Hindu Succession Act came into force on June 17, 1956, Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre conditions of section 6 are satisfied and that section is squarely attracted.
By the application of the normal rule prescribed by that section, Khandappa 's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act.
But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to section 6 comes into play and the normal rule is excluded.
Khandappa 's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorshop.
Testamentary successive is out of question as the deceased had not made a testamentary disposition though under the explanation to section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.
There is thus no dispute that the normal rule provided for by section 6 does not apply, that the proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Explanation 1 of section 6.
The interpretation of that Explanation is the subject matter of acute controversy between the parties.
Before considering the implications of Explanation 1, it is necessary to remember that what section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshare coparcenary property at 766 the time of his death.
Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject matter which the section itself deals with.
In the instant case the plaintiff 's suit, based as it is on the provisions of section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property.
Two things become necessary to determine for the purpose of giving relief to the plaintiff.
One, her share in her husband 's share and two, her husband 's own share in the coparcenary property.
The proviso to section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased.
The plaintiff 's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in sections 8, 9 and 10 of the Hindu Succession Act.
The deceased Khandappa died leaving behind him two sons, three daughters and a widow.
The son, daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the exclusion of other heirs.
As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceased 's property under section 10 read with Rules 1 and 2 of that section.
Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff 's share therein will be 1/6th.
The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share.
Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mistakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
One must, therefore, imagine a state of affairs in which a little prior to Khandappa 's death, a partition of the coparcenary property was effected between him and other members of the coparcenary.
Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son.
(see Mulla 's Hindu Law, Fourteenth Edition, page 403, para 315).
In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa 's wife, the plaintiff.
Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and, his sons Two things are thus clears : One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and 767 two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th.
So far there is no difficulty.
The question which poses a somewhat difficult problem is whether the plaintiff 's share in the coparcenary property is only 1/24th, or whether it is 1/4th plus 1/24th, that is to say, 7/24th.
The learned trial Judge, relying upon the decision in Shiramabai which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter.
The question is which of these two views is to be preferred.
We see no justification for limiting the plaintiff 's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband 's life time between him and his two sons.
We think that in overlooking that 1/4th share, one unwittingly permits one 's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff 's husband and his sons.
Whether a partition had actually taken place between the plaintiff 's husband and his sons is beside the point for the purposes of Explanation 1.
That Explanation compels the assumption of a fiction that in fact "a partition of the 'property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by section 18A(9) (b) of the Indian Income tax Act, 1922, was given by this Court in Commissioner of Income tax, Delhi vs section Teja Singh(1).
It was held in that case that the fiction that the failure to send an estimate of tax on income under section 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee under section 22 and that he had failed to comply with it.
In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh 's case, a missing step had to be supplied which was not provided for by section 18A(9) If b), namely, the issuance of a notice under section 22 and the failure to comply with that notice.
Section 18A(9) (b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income under section 18A(3) he shall be deemed to have failed to furnish a return of his income.
The section did not provide further that in the circumstances therein stated, a notice under section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with.
These latter assumptions in regard to the issuance of the notice under section 22 and its non compliance bad to be, made for the purpose of giving due and full effect to the fiction created by section 18A(9) (b).
In our case it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. vs Finsbury Borough Council.(1) He said if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and (1) [1959] Stipp.
1 S.C.R. 394 (2) 768 incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property.
For, by doing that alone can one determine the extent of the claimant 's share.
Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.
What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death.
That assumption, once made, is irrevocable.
In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.
The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages.
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one 's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased.
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion.
It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled.
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
The interpretation which we are placing upon the provisions of section 6, its proviso and explanation I thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively.
The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship rights on the son 's daughter, daughter 's daughter and sister in all areas where the Mitakshara law prevailed.
Section 3 of the Hindu Women 's Rights to Property Act.
1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family.
The Hindu Succession provides by section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner.
By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property.
Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years.
We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai Lalji vs Laxman Lalji (supra) in which Patel, J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai Bhimgonda vs Kalgonda (supra) as incorrect.
Recently, a Full Bench of that High Court in Sushilabai Ramachandra Kulkarni vs Narayanrao Gopalrao Deshpande & Ors.,(1) the Gujarat High Court in Vidyaben vs Jagdishchandra N. Bhatt(2) and the High Court of Orissa in Ananda vs Haribandhu(3) have taken the same view.
The Full Bench of the Bombay High ,Court in Sushilabai (supra) has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C. J., who has spoken for the Bench.
For these reasons we confirm the judgment of the High Court and ,dismiss the appeal with costs.
S.R. Appeal dismissed.
(1) A.I.R. 1975 (Bombay) 257.
(2) A.I.R. 1974 Guj.
(3) A.I.R. 1967 Orissa 194.

Output:
Khandappa Sangappa Magdum died on June 27, 1960 leaving behind, his widow Hirabai, two sons Gurupad and Shivapad and three daughters.
On November, 6, 1952 Hirabai filed special civil suit No. 26/53 for partition and separate possession of a 7/24 share in two houses, a land, two shops and mov ables on the basis that these properties belonged to the joint family consisting of her husband, and their two sons.
The case of the plaintiff was that if a partition were to take place during Khandappa 's life time between himself and his two sons the plaintiff would have got a 1/4th share each on the death of Khandappa, Her further case was that Khandappa 's 1/4th share could devolve upon his death on six sharers, entitling her to 1/24th share besides.
The trial Court found that the suit properties belonged to the joint family and that there was no prior partition.
Following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda , limited her share to only 1/24th and refused to add 1/4th and 1/24th together.
Dismissing the defendant 's appeal 524/66 and allowing the cross objections of the plaintiff, the Bombay High Court, by its judgment dated March 19, 1975 following 68 Rom.
L.R. 74 which overruled , held that the plaintiff wag entitled to 7/24th share.
Dismissing the appeal by special leave, the Court.
HELD : 1. (a) What Section 6 of the Hindu Succession Act.
1956 deals with is the devolution of the interest which a male Hindu has in a Mitakshara property at the time of his death.
The proviso to Section 6 contains a formula, for fixing the share of the claimants while Explanation I contains a formula for deducing the share of the deceased.
[765 H, 766 A B] (b) Explanation I which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be, the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Explanation 1.
That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
The fiction created by Explanation I has to be given its due and full effect.
[766 E F, 767 C D] Commissioner of Income Tax, Delhi vs section Teja Singh, ; applied.
East End Dwellings Co. Ltd. vs Finsbury Borough Council, 132, quoted with approval 2.
(a) In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as they Very first step to ascertain the share of the deceased in the coparcenary property , by dong that alone can one determine the extent of the claimant 's share.
Explanation 1 to section 6 resorts to the simple expedient, undoubtedly factional, that.
14 315SCI/78 762 the interest of a Hindu Mitakshara coparcener "shall be deemed to be the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.
What is therefore required to be assumed is that a partition had in fact taken place between the deemed and his coparceners immediately before his death.
That assumption, once made, is irrevocable.
In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference, to it.
The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages.
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one 's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased.
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion.
it has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled.
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
[768 B G] (b) Ibis interpretation furthers the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantatively.
Even assuming that two interpretations of Explanation 1 are reasonably possible, Courts must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years.
By restricting the operation of the fiction created by Explana tion I in the manner suggested by the appellant, Courts, shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of pro perty.
[768 G, 769 A B] Rangubhai Lalji vs Laxman Lalji, 68 (Bom) L.R. 74; Sushilabai Ramachandra Kulkarni v, Narayanarao Gopalrao Deshpande and Ors., A.I.R. (1975) Bom.
257; Vidyaben vs Jagadishchandra N. Bhatt, A.I.R. 1974 Guj. 23; Ananda vs Haribandu, A.I.R. 1967 Orissa 194; approved.
In the instant case, (a) There is no justification for limiting the plaintiff 's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband 's life time between him and his two sons.
In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa 's wife, the plaintiff.
Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons.
[766 G H, 767 B C] (b) By the application of the normal rule prescribed by Section 6 of the , Khandappa 's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act.
But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, ,he proviso to section 6 comes into play and the normal rule is excluded.
Khandappa 's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship.
Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to section 763 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary.
property is capable of being disposed of by a will or other testamentary disposition.
[765 E G] (c) The plaintiff 's share as determined by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession .
Act will be 1/6th.
The deceased Khandappa died leaving behind him two sons, three daughters and a widow.
The son, daughter.
and widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the exclusion of other heirs.
As between them the two son 's, the three daughters and the widow will take equally.
each having one share in the deceased 's property under section 10 read with Rules 1 and 2 of that section.
[766 C D]


Input:
Appeal No. 2170 of 1967.
Appeal from the judgment and order dated September 5, 1963 of the Calcutta High Court in Civil Rule No. 2864 of 1952.
Purshottam Chatterjee and G. section Chatterjee, for the appellant.
D. B. Mukherjee and section C. Majumdar, for respondent No. 1.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Calcutta High Court arising, out of a petition filed by the appellant under section 26F of the Bengal Tenancy Act, 1885 claiming a right of preemption over certain lands purchased by respondent No. 1.
926 The facts may be briefly stated.
On July 23, 1950, the ap pellant purchased certain portion of land in C.S. Dag No. 3605 of Monza Kasba from the occupancy raiyats respondents Nos. 2 and 3 and one Bhabesh Chandra Kundu deceased.
By another deed the appellant purchased from the said vendors another plot of land measuring 31 acres.
By a Kabala dated October 8, 1950 the said vendors sold 10 acres of land in the same Dag number to respondent No. 1 for Rs. 2,700.
The appellant filed an application before the Second Subordinate Judge, Alipore district 24 Parganas under section 26F of the Bengal Tenancy Act claiming the right of preemption over the land purchased by respondent No. 1.
The latter took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle Dinabandhu Chatterjee had acted as brokers in the transaction and received Rs. 300 as brokerage; the appellant had thus waived his right of preemption.
The learned trial Judge disbelieved the case set up by respondent No. 1 and allowed the application of the appellant for preemption.
Respondent No. 1 filed an appeal in the court of,the Additional District Judge, Alipore.
He held that the appellant 's claim for preemption was barred owing to waiver on his part.
The appellant filed a petition for revision in the High Court but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver.
The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case.
Moreover waiver could not be proved by estopped.
Learned counsel for the appellant relied on the observations of Lord Russel of Killowen in Dawson 's Bank Limited vs Nippon Menkwva Kabushiki Kaisha(1).
While stating the distinction between estopped and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right.
" According to the appellant all that had been found was that by his act and conduct he had waived his right of preemption.
It was pointed out that there was no evidence for any consideration having moved from respondent No. 1 in the matter of abandonment of the appellant 's right of preemption.
In the well known work of Sir William P. Anson "Principles of the English Law of Contract", 22nd Edn., it has been stated at p. 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective.
(1) 62 I.A. 100, 108. 927 In India the general principle with regard to waiver of contractual obligations is to be found in section 63 of the Indian Contract Act.
Under that section it is open to a promise to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit.
Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver.
This Court has already laid down in Waman Shriniwas Kini vs Ratilal Bhagwandas & Co.(1) that waiver is the abandonment of a right which normally everybody is at liberty to waive.
"A waiver is nothing unless it amounts to a release.
It signifies nothing more than an intention not to insist upon the right.
" It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right.
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence.
The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected.
A faint attempt was made to assail the finding of the High Court that on the facts which had been proved waiver had been established.
We find no reason or justification for interfering with the conclusion of the High Court on the point.
The appeal fails and it is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) [1959] Supp.
2 S.C.R. 217, 226.

Output:
The appellant filed an application under section 26(f) of the Bengal Tenancy Act claiming right of preemption over the land purchased by the respondent.
The respondent took up the position that the appellant was not a co sharer in the land which had been purchased by her and that he along with his uncle had acted as brokers in the transaction and received brokerage; the appellant had thus waived his right of preemption.
The trial Judge allowed the application.
The appeal Court held that the appellant 's claim was barred owing to waiver on his part.
A revision to the High Court was unsuccessful.
In appeal to this Court it was urged that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver.
HELD, : Under the Indian Law neither consideration nor an agreement would be necessary to constitute waiver.
A waiver signifies nothing more than an intention not to insist upon the right.
It is well known that in the law of preemption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of forfeiture of such a right.
So far as the law of preemption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence.
The contention that the waiver of the appellant 's right under section 26F of the Bengal Tenancy Act must be founded on contrast or agreement cannot therefore be acceded to.
[927 A D] Wanman Shrinwas Kini vs Ratilal Bhagwandas & Co., [1959] Supp. 2, S.C.R. 217, 226 and Dawson 's Bank Limited vs Nippon Menkwa Kabushiki Kaisha, 62 I.A. 100, 108 referred to.