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Appeals No&323 and 324 of 1956.
Appeal from the judgment and orders dated April 27, and July 13, 1956, of the Madras High Court in Writ Appeals Nos.
42 and 88 of 1956 arising out of the orders dated March 23, and July 9, 1956, of the said High Court in Writ Petitions Nos. 333 and 564 of 1956.
A. V. Viswanatha Sastri, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant.
Daphtary, Solicitor General of India,, R. Gan.
pathy Iyer and R. Gopalkrishnan, for respondents Nos. 3 and 4.
665 1957.
February 19.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are appeals against the judgment of the High Court of Madras on a certificate given under article 133 (1) (c) of the Constitution, and they raise a question of some importance as to the true legal character of a permit when it is renewed under the provisions of the (IV of 1939) hereinafter referred to as the Act.
In order to appreciate the contentions of the parties, it is necessary to state the material facts leading up to the present dispute.
Towards the end of 1952, the appropriate authorities under the Act decided to grant two additional permits for stage carriages in the Ondipudur Agricultural College route in the town of Coimbatore in the State of Madras,, and invited applications therefor under section 57 of the Act.
There were as many as 39 applicants, and by his order dated December 3, 1952, the Regional Transport Authority granted one permit to applicant No. 24, the Thondamuthur Trading Company Ltd., and another to applicant No. 30, the V.C.K. Bus Service.
There were appeals by some of the unsuccessful applicants to the Central Road Traffic Board, which by its order dated February 19, 1953, set aside the order of the Regional Transport Authority and granted the permits, one to Stanes Transports Ltd., and another to Thirumalaiswami Goundar.
Revisions were preferred against this order by the aggrieved applicants under section 64 A of the Act, and by its order dated July 9, 1953, the Government confirmed the grant of the permit to Stanes Transports ,Ltd., but set aside the permit given to Thirumalaiswami Goundar, and granted it instead to Annamalai Bus Transport Ltd. Thereupon, applicants Nos. 24 and 30 moved the High Court of Madras under Aft. 226 for a writ of certiorari to quash the order of the Central Road Traffic Board dated February 19, 1953 and of the Government dated July 9, 1953; but the applications were dismissed by Rajagopala Ayyangar J. on March 8, 1954.
Against the orders of dismissal, Writ Appeals Nos. 31 and 32 of 1954 were preferred, and they were 666 dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on March 21, 1956.
It should be mentioned that the operation of 'the order dated February 19, 1953 was stayed pending the disposal of the revision under section 64 A and the writ proceedings in the High Court, with the result that both Thondamuthur Trading Company Ltd. and V.C.K. Bus Service which had been granted permits by the Regional Transport Authority on December 3, 1952, continued to run their buses notwithstanding cancellation of those permits on February 19, 1953.
It should also be mentioned that in June 1954 the business of the V.C.K. Bus Service which was the grantee of one of the permits under the order of the Regional Transport Authority dated December 3, 1952, was taken over by a Company called the V.C.K. Bus Service Ltd., which is the appellant before us, and by an order of the Regional Transport Authority dated July 7, 1954, it was recognised as the transferee of the permit granted to V.C.K. Bus Service.
To continue the narrative, the permit which was the subject matter of the litigation aforesaid was for a period of one year and a half, and it expired on June 30, 1954.
Before its expiry, the appellant applied on April 15, 1954, for a renewal thereof for a period of three years.
This application was duly notified under s.57, and objections to the grant were preferred by both Stanes Transports Ltd., and Annamalai Bus Transport Ltd. On September 5, 1954, the Regional Transport Authority granted a permit to the appellant for a period of one year from July 1, 1954 to June 30, 1955, obviously in the expectation that Writ Appeals Nos. 31 and 32 of 1954 would by then have been decided.
On March 19, 1955,the appellant again applied for a renewal of the permit, and that was also notified under section 57, and no objections having been filed to the grant thereof, the Regional Transport Authority by his order dated June 23, 1955, renewed the permit for a period of three years from July 1, 1955 to June 30, 1958.
It is this permit that forms the subject matter of the present litigation.
It has been already stated that Writ Appeals Nos. 31 and 32 of 1954 were dismissed on March 21, 1956.
667 Apprehending that the Regional Transport Authority might, in view of the judgment of the High Court, cancel the permit which was renewed on June 23, 1955, the appellant filed Writ Petition No. 333 of 1956 for a Writ of Prohibition restraining the Regional Transport Authority from Cancelling the permit, and that was dismissed by Rajagopala Ayyangar J. on the ground that when the original permit was set aside, the renewal thereof fell to the ground.
The appellant filed Writ Appeal No. 42 of 1956 against this order, and that was heard by Rajamannar C. J. and Panchapakesa Ayyar J. who by their judgment dated April 27, 1956, held, following a previous decision of that Court in K. Muthuvadivelu vs Regional Transport Officer(1) that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it could not be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be non est for all purposes, and that the renewal must therefore be held to be a nullity.
In the result, they dismissed the appeal, but granted a certificate under article 133(1)(c), observing that the case raised a point of general importance, which was stated by them in these terms: When an application for renewal of a permit is made and granted and eventually it is held that the original permit was itself wrongly granted, does the renewed permit subsist for the period for which it was renewed, or does it automatically cease to be in force when it is finally decided that the original permit was not granted validly ? This matter now comes before us in Civil Appeal No, 323 of 1956.
After the High Court delivered its judgment in Writ Appeal No. 42 of 1956 on April 27, 1956, the respondents herein, viz., Stanes Transports Ltd., and Annamalai Bus Transport Ltd., applied to the Regional Transport Authority to grant them permits in accordance with the decisions of the High Court, and on May 5, 1956, the Regional Transport Authority cancelled the permit granted by him on June 23, 1955, in favour (1) A.I.R. 1956 Mad.
86 668 of the appellant, and granted permits instead to the respondents.
Thereupon, the appellant filed Writ Petition No. 554 of 1956 for a writ of certiorari to quash the order dated May 5, 1956, on the grounds which had been put forward in Writ Petition No. 333 of 1956 and Writ Appeal No. 42 of 1956.
That petition was dismissed by Rajagopalan J. on July 9, 1956, and the Writ Appeal No. 88 of 1956 filed against that order was dismissed by Rajamannar C. J. and Panchapa kesa Ayyar J. on July 13, 1956.
Leave to appeal against that judgment was also given under article 133 (1) (c), as the subject matter thereof was the same as that of Writ Appeal No. 42 of 1956 in respect of which leave had already been granted.
Civil Appeal No. 324, of 1956 relates to this matter.
Thus, both the appeals relate to the same matter, and raise the same point for determination.
Mr. A. V. Viswanatha Sastri, learned counsel who appeared in support of the appeals, contends that the view taken by the learned Judges of the High Court that when a permit is set aside by higher authorities, it should be treated as wholly non existent, and that, in consequence, a renewal thereof must be held to be void, is not sound, that on a correct interpretation of sections 57 and 58, a renewal is practically in the nature of a new grant, that the permit which was granted to the appellant for the period July 1, 1955 to June 30, 1958, though styled a renewal, was in substance a fresh permit, and that the fact that the old permit was set aside did not therefore affect the rights of the appellant under this permit.
He also argues that the Act and the rules framed thereunder contain elaborate provisions as to when a permit could be cancelled, forming in themselves a complete code on the subject, that the cancellation of the original permit is not one of the grounds on which a renewed permit could be set aside, and that the order of the Regional Transport Authority dated May 5, 1956, was therefore ultra vires.
The contention of the learned Solicitor General for the.
respondents is that when a permit is renewed, the renewal is, on a true construction of the provisions of the Act, in substance as in name a continuation of the 669 previous permit, and that, in consequence, when the, grant of a permit is set aside by a higher authority, the renewal thereof must also stand automatically set aside, and that further even if a renewed permit is not to be regarded as a continuation of the original permit,, seeing that it is granted on the basis of that permit it should be held to be subject to an implied term that it should cease if the original permit is cancelled.
The two points that arise for decision on these contentions are: (1) when a permit is renewed, is it a continuation of the original permit, or is it, in fact, a new one? and (2) if a renewed permit is not a continuation of the original permit, is the grant of it subject to the implied condition that it is liable to be cancelled, if the original permit is cancelled ? On the first question, it is necessary to refer to certain provisions of the Act material thereto.
Section,57 prescribes the procedure to be followed in the grant of stage carriage permits.
Under sub section
(2), applications therefor have to be made not less than six weeks before the date appointed by the Regional Transport Authority therefor.
Sub section (3) requires that they should be: published in the prescribed manner, and provision is made for representations being made in connection therewith.
When any representation is so received, sub section
(5) provides that the person making it is to be given an.
opportunity of being heard thereon in person or by a, duly authorised representative, and that the application for permit is to be disposed of at a public hearing.
Section 58 deals with renewals, and is as follows: (1) " A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit: Provided that in the case of a permit issued or renewed within two years of the commencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe.
670 (2) A permit may be renewed on an application made and disposed of as if it were an application for a permit: Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
" The contention of the learned counsel for the appellant based on section 58 (2) is that under the Act an application for renewal is to be dealt with exactly as an application for a new permit, that it is to be notified under section 57 and representations have to be called for in connection herewith and considered at a public hearing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other conditions are equal and is thus only one of several factors to be taken into account, and that therefore when a renewal is actually granted, it is on an independent consideration of the merits and it cannot be distinguished from a fresh grant.
It was further argued that the proviso to section 58(2) meant little, because it was well established that the grant of a permit was not a matter of right, and the authorities under the Act would be acting within their powers if they refused an application for renewal and granted a fresh permit to a new applicant.
It was also contended that though the statute spoke of a renewal of a permit, that expression did not accurately bring out the true position, because in legal terminology, renewal imports that the transaction which is renewed, as for example, a lease, is to operate for a further period but on the same terms, but that when a permit was renewed, it was open to the authorities to impose new conditions, to alter the period during which it was to operate and generally to modify its terms, and that therefore the use of the word ,renewal " should not lead to the.
inference that it was the original permit that was being continued.
There is force in these contentions, but there are other provisions bearing on this question, and when they are reviewed as a whole, it is abundantly clear that the intention of the legislature was to treat a renewal as a continuation of the previous permit.
To 671 start with, section 58(1) enacts that a permit shall be effective for the period specified therein, but this is qualified by the words " without renewal ".
Therefore, when there is a renewal, the effective period is not the original period specified, but the period up to which the renewal is granted.
That indicates that the life of a renewed permit is one and continuous.
The matter is placed beyond doubt when we turn to the rules which have been framed under the Act.
Rule 184 (1) provides that when a renewal is granted, it shall be endorsed on the permit itself, and Form No. 33, which is prescribed therefor is as follows: " This permit is hereby renewed up to the day of. . 19 Thus, what is renewed is " this permit".
In this connection, reference must be made to the definition of " permit " in section 2(2) of the Act 'as " the document issued by a Provincial or Regional Transport Authority Rule 1985 is very material for the purpose of the present discussion, and it runs as follows: If an application for the renewal of a permit has been made in accordance with these rules and the prescribed fee paid by the prescribed date, the permit shall continue to be effective until orders are passed on the application or until the expiry of three months from the date of receipt of the application whichever is earlier.
If orders on the application are not passed within three months from the date of receipt of the application, the permit holder shall be entitled to have the permit renewed by the Transport Authority for the period specified in the application or for one year whichever is less and the Transport Authority shall call upon the permit holder to produce the registration certificate or certificates and Part B or Parts A and B of the permit, as the case may be, and endorse the renewal in Parts A and B of the permit accordingly and return them to the permit holder ".
Under this rule, when an application for renewal is made, the permit already granted is to be in force 'until an order is passed thereon, and what is more important, if no order is passed within three months, 672 the permit 'becomes automatically renewed for the ,,period mentioned in the rule.
This goes a long way to support the contention of the respondents that on the scheme of the Act, renewal is a continuation of the original permit.
It should also be mentioned that the rules provide for different forms for an application for fresh permit and one for renewal, and the fee to be paid along with those applications is also different.
A reading of the relevant provisions of the Act and of the rules leads indubitably to the conclusion that a renewal is a continuation of the permit previously granted.
The fact that the grant of renewal is not a matter of course, or that it is open to the authorities to impose fresh conditions at the time of renewal does not, when the permit is in fact renewed, alter its character as a renewal.
We shall now consider the authorities cited by learned counsel for the appellant as supporting the view that a renewal under the Act is in the same position as a fresh permit.
In Mahabir Motor Co. vs Bihar State(1), the point for decision was whether an appeal lay under section 64 (f) against an order granting a renewal of a permit.
The contention before the Court was that the Act made a distinction between the grant of a permit and a renewal thereof, and that as section 64 (f), provided only for an appeal against an order granting a permit, no appeal lay against an order granting a renewal.
In repelling this contention the Court observed "Both grant.
and renewal stand more or less on the same footing by reason of sections 47, 57 and 58 of the . .
This observation has reference to the procedure to be followed in the renewal of a permit and the right of appeal given under a. 64 as part of that procedure.
It has, no bearing on the character of a permit when it is renewed.
Another decision on which the appellant strongly relied is Anjiah vs Regional Transport Officer, Guntur There, the, facts were that an order of suspension had been passed for breach of one of the (1) Patna 429.
(2) [1956] Andhra Law Times 347. ] 673 conditions of the permit.
The correctness of the order was challenged before higher authorities, but without success.
Meantime, the period fixed in the permit had expired, and it had been renewed.
The question was whether the period of suspension could be enforced against the renewed permit.
It was held by the Andhra High Court that it could not be, because the renewal was, in essence, a new permit and not a mere continuance of the old one.
The reason for ' this decision was thus stated in the judgment: " There is no right of renewal as such and when a permit is renewed, there is no right either, on the part of the permit holder to insist upon the continuance of the old terms.
It would be undesirable that there should be any such restrictions upon the right of the authorities to grant the permit to anybody they choose or subject to any conditions that they think it to be necessary to impose, provided that they are acting all the time in the public interest and subject to the provisions of the and the.
Rules made thereunder.
" These considerations, though not without force, can.
not, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference and for the reasons already given, we are unable to agree with this decision.
In the view that we have taken that under the provisions of the Act and the rules, a renewal is a continuation of the original permit, there can be no doubt as to what the rights of the appellant are.
When the proprietor of V. C. K. Bus Service was granted a permit by the Regional Transport Authority on December 3, 1952, that grant was subject to the result of the decision of the higher authorities.
On September 5, 1954, when the permit was renewed in favour of the appellant, that was subject to the decision of the High Court in Writ Appeal No. 32 of 1954, which was then pending.
When the renewed permit dated September 5, 1954, was again renewed on June 23, 1955, that was likewise subject to the result of the decision in Writ Appeal No. 32 of 1954.
When the High Court by its judgment dated March 674 21, 1956, passed in the said Writ Appeal upheld the cancellation of the permit which had been granted by the Regional Transport Authority on December 3, 1952 to V. C. K. Bus Service, the permit renewed on June 23, 1955, became ineffective at least as from that date.
The Regional Transport Authority was therefore right in treating it as having become void, and granting by his order dated May 5, 1956, permits to the respondents.
The second question arises on the alternative contention advanced by the respondents that even if the renewal is to be regarded, not as a continuation of the original permit but as an independent grant, it must be held to have been subject to an implied condition that if the original permit is ultimately set aside, the renewal thereof should come to an end.
Mr. Sastri, learned counsel for the appellant, disputes the correctness of this contention.
He argues that when there is a document embodying the terms ' of a contract, it is not permissible to imply therein a condition, if that will contradict or vary any terms contained in it, that to read into the permit a condition that it is to cease if the decision of the High Court went against the appellant, ' would be to modify the terms contained therein that it is to be effective upto June 30, 1958, and that it could not therefore be implied.
He also relies on the following observation of Lord Parker in P. A. Tamplin Steamship Company Limited vs AngloMexican Petroleum Products Company Limited (1) : " This principle is one of contract law, depending on some term or condition to be implied in the contract itself and not on something entirely dehors the contract which brings the contract to an end.
It is, of course, impossible to imply in a contract any term or condition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions.
" It is undoubted law that when the terms of a contract or grant are reduced to writing, no condition can be implied therein, which will be inconsistent with its express terms.
But the contention of the respondents (1) , 422. 675 involves no conflict with this principle.
They do not seek to obtain any modification or alteration of the terms of the permit, leaving it to operate subject to such modification or alteration.
They want that the whole permit with all its terms as to duration and otherwise should be held to have become inoperative.
What they are pleading is a condition subsequent on the happening of which the permit will cease, and to that situation the observation quoted above has no application.
Reference may be made in this connection to the following observation occurring later in the speech of Lord Parker in F. A. Tamplin Steamship Company Limited vs Anglo Mexican Petroleum Products Company, Limited (supra): " Moreover, some conditions can be more readily implied than others.
Speaking generally, it seems to me easier to imply a condition precedent defeating a contract before its execution has commenced than a condition subsequent defeating the contract when it is part performed." Thus, there is no legal obstacle to implying a condition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court.
That brings us on to the question of fact, whether on an examination of the permit and of the circum.
stances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it.
The permit granted to the V. C. K. Bus Service on December 3, 1952, had been cancelled on February 19, 1953, and it was only by reason of the stay orders that the bus was permitted to run.
When the appellant applied for renewal on April 15, 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated July 9, 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from July 1, 1954 to June 30, 1955.
It is true that 87 676 when the appellant applied again for renewal on March 19, 1955, the respondents did not raise objection thereto, but as the appeals in the High Court were still pending, they had good reason to believe that the renewal would not affect whatever rights might be declared in their favour by the High Court.
As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on June 23, 1955, it is impossible to resist the conclusion that he really intended to renew the permit only subject to the decision of the High Court.
It is of the utmost importance in this connection to bear in mind that the appellant applied not for a fresh permit but for a renewal, and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under Rule 134 A read with section 58 of the Act, and if he did not expressly provide that it was subject to the decision of the High Court, it must be because he must have considered that that was implicit in the fact of its being only a renewal.
That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment.
But it is argued for the appellant on the strength of the decision in Veerappa Pillai vs Raman & Raman Ltd.(1) that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is not a sufficient ground to import a condition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional.
We do not read that decision as authority for any such broad contention.
There, the question related to five permits, which had been originally granted to one Balasubramania.
Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself.
Then, Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, (1) ; 677 applied to have the permits transferred in his name.
On October 3, 1944, he also instituted a suit in the Sub Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on May 2, 1946.
Raman and Raman Ltd. appealed against this decision to the Madras High Court, which by its judgment dated September 2, 1949, reversed the decree of the Sub Court and held that it was entitled to the buses.
While these proceedings were going on, the transport authorities suspended on March 28, 1944, the permits which had been granted to Balasubramania and instead, they were issuing temporary permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub Court, Kumbakonam.
On March 29, 1949, the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits, to Veerappa.
Then on October 14, 1949, Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on January 3,1950.
The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Raman and Raman Ltd., that had obtained a valid title to the buses.
This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was not liable to be questioned in proceedings under article 226.
It should be noted that the renewal which was granted on January 3, 1950, was of permanent permits granted in pursuance of the, order of the Government dated March 29, 1949, which had quite plainly declared as a matter of policy that notwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa.
There can be no question of implying thereafter a condition that they were subject to the decision of the Court.
Moreover, the renewal was granted on January 3, 1950, after the litigation had ended on September 2, 1949, and any attack on that order could only be by 678 way of appeal against it, and that had not been done, We are of opinion that the decision in Veerappa Pillai vs Raman & Raman Ltd. (1) is of no assistance to the appellant.
In the result, we affirm the decision of the High Court both on the ground that the renewal dated June 23, 1955, is a continuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied condition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective.
These appeals fail, and are dismissed with costs in Civil Appeal No. 323 of 1956.
Appeals dismissed.

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The appellant was granted a permit for stage carriage by the Regional Transport Authority under the provisions of the , but on appeal to the appellate authority, the Central Road Traffic Board, by the unsuccessful applicants the order granting the permit was set aside and the order of the Central Road Traffic Board was approved by the Government in revision.
The appellant, thereupon, moved the High Court for a writ of certiorari to quash the proceedings of the Central Road Traffic Board and the Goverment.
During the pendency of these proceedings there was a stay of operation of the order setting aside the grant of the permit to the Appellant, with the result that be continued to run his buses notwithstanding the cancellation of his permit.
Before the expiry of the period fixed in the original 664 permit, he applied for and got a renewal of the permit from the Regional Transport Authority under section 58 of the Act.
The High Court finally dismissed the application for a writ of certiorari and 'the question arose as to the validity of the renewal of the permit in view of the High Court 's decision.
The matter was raised before the High Court once again by proceedings under article 226 of the Constitution and the High Court held that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it could not be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be non est for all purposes, and I that the renewal must therefore be held to be a nullity.
The appellant appealed to the Supreme Court.
Held:(1) Under the provisions of the Motor Vehicles Act, 1949 and the rules framed thereunder, a renewal is a continuation of the original permit.
When the original permit was renewed in favour of the appellant it was subject to the decision of the High Court in the proceedings under article 226 of the Constitution which were then pending and, therefore, when the order granting the original permit was fin ally set aside the renewed permit became void.
Anjiah vs Regional Transport Officer, Guntur, 1956 Andhra Law Times, 347, disapproved.
(2)When the appellant applied for a renewal of his permit under section 58 of the Act and not merely for a fresh permit the order of the Regional Transport Authority granting the renewal must be held to have been made subject to the implied condition that the right of the appellant to the original permit is recognized by the High Court and that accordingly, in the event that had happened, the renewed permit ceased to, be effective.,.
Veerappa Pillai vs Raman & Raman Ltd., ; , explained and distinguished.


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Appeal No. 527 of 1967.
Appeal from the judgment and decree dated August 2nd/3rd, 1965 of the Mysore High Court in Regular First Appeal No. 147 of 1958.
M. Natesan and K. Jayaram, for the appellant.
section section Shukla, for respondents Nos. 1 to 4.
The Judgment of the Court was delivered by Hedge, J.
This appeal by certificate arises from the deci sion of the Mysore High Court in R.A. No. 147 of 1958 on its file.
The plaintiff is the appellant.
The main question that arises for decision in this appeal is as to the share to which the plaintiff is entitled in the properties held to be partible by the High Court.
One other minor contention had also been urged which will be referred to and dealt With at the appropriate stage.
The facts as found by the High Court and which are no more in dispute may now be stated.
The appellant is the adopted son of one Ranga Rao alias Ramachandra Rao who died in 1912.
He was adopted by the 202 said Ranga Rao 's widow Seethabai on September 18, 1955.
The geneology of the family of Ranga Rao is as follows KRISHNA RAO DESHPANDE (Died 1934) MARRIED RADHABAI (Died 1935) Ranga Rao alias Hanumantha Rao Ramchandra Rao (went out of the (died 1912) family by adoption).
Married Seethabai (Defendant No. 1) Govinda (Adopted on 18 9 1955) Plaintiff Lakshmana Rao (died 6 9 1952) Married Venkubai Ambabai lst wife 2nd wife (died 1904) Napppa Nagamma Ansuyabai (Nagesh) Deft.
7 Deft.
2 Krishnaji Lakshamana Gundappa Deft.3 (Deft. 4) Deft. 5.
Hanumantha Rao went out of the family having been adopted into some other family.
There was a partition between Krishna ' Rao and Lakshmana Rao, the only two existing coparceners at that time, in 1933.
After partition Krishna Rao is said to have bequeathed his properties to some of his relations as per his will dated November 8, 1934.
Subsequently there was a further partition between Lakshmana Rao and defendant No. 2 Nagappa on 203 February 14, 1946.
Lakshmana Rao died in 1952.
Asmentioned earlier, the plaintiff was adopted on September 18, 1955 and the suit from which this appeal arises was instituted in1956 by the plaintiff appellant represented by his natural father ashis ' next friend as he was a minor on the date of the suit.
The trial court granted the plaintiff half share in the properties that were held to be that of the family.
The High Court modified the decree of the trial court in certain respects.
It is not necessary to refer to all the modifications made by the High Court.
We shall refer only to those modifications which are challenged in this appeal.
The High Court reduced the share awarded to the plaintiff from half to 1/3rd of the properties held by it to be partible.
The correctness of this decision is questioned.
The only other question is whether the High Court was justified in setting aside the trial court 's decree awarding a sum of Rs. 15001 to the plaintiff.
Before proceeding to examine the appellant 's contention that he is entitled to a half share in properties held to be partible, it would be convenient to dispose of his contention relating to the money decree.
The trial court came to the conclusion that out of the consideration of Rs. 6500/ received under the sale deed Exh. 177, the second defendant had not accounted for Rs. 3000/ .
Hence the plaintiff is entitled to a half share therein.
The trial court as well as the High Court have found that the sale in question is valid as the same was effected to meet family necessities.
The appellant did not seek an accounting from the 2nd defendant.
No case was made out for requiring the 2nd defendant to account in respect of the amounts received by him as the karta of the family, nor did the plaintiff aver in his plaint that there was any cash in the hands of the 2nd defendant.
Hence the High Court was justified in reversing the decree of the trial court directing the defendant to pay to the plaintiff a sum of Rs. 1500/ .
This leaves us with the question as to the share to which the plaintiff is entitled in the partible properties.
Even before the plaintiff was adopted into the family, there was a partition between Krishna Rao and Lakshmana Rao.
The genuineness of that partition is no more in dispute.
After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought best.
As mentioned earlier he had bequeathed his properties to others.
But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father, Ranga Rao.
By a fiction of law, he must be deemed to have been in existence, when Krishna Rao and Lakshmana Rao divided the properties amongst themselves.
The said partition having been effected without his joinder, the same has to be 204 ignored.
Hence he is entitled to a half share in the properties.
Alternatively, it was contended that the plaintiff is entitled to get by succession half share in the properties that fell to the share of Krishna Rao.
Before proceeding to examine the decided cases referred to at the time of the arguments, let us proceed to examine the question on first principles.
It is true that by a fiction of law well settled by decided cases that an adopted son is deemed to have been adopted on the date of the death of his adoptive father.
He is the continuator of his adoptive father 's line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect.
Whenever the adoption may be made there is no hiatus in the continuity of the line.
From that it follows that the appellant must be deemed to have been adopted in 1912.
Consequently he is deemed to have been a coparcener in his adoptive father 's family when Krishna Rao and Lakshmana Rao partitioned the properties.
The partition having been effected without his consent, it is not binding on him.
But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition.
It was open to Krishna Rao and Lakshmana Rao to separate themselves from the family.
Once they did separate, the appellant and his adoptive mother alone must be deemed to have continued as the members of the family.
It is true that because the plaintiff 's adoptive mother was alive, the family cannot be said to have come to an end on the date of partition.
But that does not mean that Krishna Rao and Lakshmana Rao did not separate from the family.
the partition took place in 1933, the appellant even if he was a coparcener on that day could have only got 1/3rd share.
We, fail to see how.
his position can be said to have improved merely because he was adopted subsequent to the date of partition.
It is true that because he was not a party to the partition, he is entitled to ask for reopening of the partition and have his share worked out without reference to that partition.
But so far as the quantum of his share is concerned, it must be determined after taking into consideration the fact that Krishna Rao and Lakshmana Rao separated from the family in 1933.
The alternative contention of the appellant referred to earlier is also untenable firstly because Krishna Rao disposed of his share of the properties by means of a will and secondly even if he had not disposed of his: share of the property, the same would have devolved on Lakshmana Rao by succession and the property that had once vested by succession cannot be divested as in that property the plaintiffs adoptive father had no right of his own.
The doctrine of relation back is only a legal fiction.
There is no justification to logically extend that fiction .
In fact the plaintiff had nothing to do with his adoptive father 's family when Krishna Rao died.
On that day 205 his adoptive father was not alive.
The devolution of Krishna Rao 's property must be held to have taken place at the very moment Krishna Rao died.
We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted.
This takes us to the decided cases.
A long line of decisions has firmly laid down that an adoption dates back to the date of the death of the adoptive father.
It is not necessary to refer to the catena of decisions on this point.
Suffice it to refer to the decision of this Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango and Ors.(1).
But that fiction by itself does not help the plaintiff.
That fiction merely enables him to establish that he must be deemed to have been in existence on the date of the death of his adoptive father.
Division of status need not be effected by bilateral agreement.
It can be effected by an unilateral declaration by a coparcener if the same is properly communicated.
Therefore it was within the power of Krishna Rao and Lakshmana Rao to separate themselves from the family and in fact they did so in 1933.
We see no basis for the contention of the appellant that he can ignore the events that took place in 1933.
He can no doubt ignore the actual partition by metes and bounds effected by Krishna Rao and Lakshmana Rao and ask for a repartition of the properties but his adoption by itself does not and cannot re unite the divided family.
It is one thing to say that an adopted son can ignore a partition effected prior to his adoption, which affects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family.
Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Ors.
vs Ramkrishna Krishnarao (2 ) in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis.
It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint.
The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu law text or by any decision of this Court or the Judicial Committee.
The decision of the Judicial Committee in Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil(3), relied on by the High Court did not consider that question.
It is true that some of the observations of Chief Justice Stone in Bajirao and Ors.
vs Rant (1) ; (2) A.I.R. 1952 Bam.463 (3) 70 I.A. 232.
206 krishna(1), does support the view taken by the Bombay High Court.
But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive father 's family cannot divest the properties that had vested in the other coparceners.
It may be noted that in the course of his judgment, the learned Chief Justice observed : "There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from a joint Hindu family unless the family can be wholly disrupted and finally brought to an end.
We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it.
The family cannot be at an end while there is still a potential, mother if that mother in the way of nature or in the way of law brings in a new male member.
The existing male members can separate off; they can take away their share.
They cannot prejudice by partitioning the rights of the after bom male member whether the birth is natural or legal.
If in point of fact, before his arrival, the existing coparceners have partitioned the new arrival can obtain a re opening of the partition and thereby get his share.
How that share is to be calculated in various circumstances need not be decided here.
" These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court.
The decision of the Full Bench of the Madras High Court, in K. R. Sankaralingam Pillai and anr.
vs Veluchami Pillai, Minor (2) , relied on by Bombay High Court merely laid down that an adopted son is entitled to reopen partition entered into in the family of his adoptive father, before his adoption.
That position is no more open to question and was not questioned in this appeal.
We are only concerned with the quantum of share to which the plaintiff is entitled.
Our attention has not been invited to any decision which supports the view taken by the Bombay High Court.
We see no justification to accept that view.
Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father.
Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications.
Hindu widows in the past were proverbially long lived because of 'the child marriage system.
Adoptions might take place and have taken place more than half a century after the death of the adoptive (1) I.L.R. (2) I.L.R. 207 father.
Meanwhile the other coparceners might have dealt with the family property on the basis of the then existing rights.
They might have alienated the property.
We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis.
This Court in Shrinivas Krishnarao Kango 's case(1) has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father.
But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule, that inheritance once vested cannot be divested.
It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collateral 's estate, divesting the property that had already vested in someone else.
But the rule laid down by this Court in that case is much wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion.
The rights of an adopted son cannot be more than that of his adoptive father.
If the plaintiff 's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date.
In our judgment the plaintiff 's claim for a half share in the family properties is unsustainable.
In the result ibis appeal fails and the same, is dismissed with costs.
S.C. Appeal dismissed.
(1) [1955] 1.S.C.R. 1.

Output:
The appellant was adopted in 1955 by R 's widow after R 's death in 1912.
In 1933, there was a partition between K (R 's father) and his third son L, the only two coparceners existing at that time.
Thereafter, K. bequeathed his properties by will to some of his relations.
Later, there was a further partition between L and his son.
L died in 1952.
A suit was filed in 1956 by the appellant, claiming half of the family properties.
The trial court granted the appellant half share in the family properties.
The High Court reduced the share awarded to the appellant from 1/2 to 1/3 of the properties held by it to be partible.
The High Court also set aside the trial court 's decree awarding a sum of Rs. 1500 to the appellant as his share of the consideration received under a sale deed; In appeal to this Court the appellant contended that his adoption related back to the date of death of his adoptive father; by a fiction of law, he must be deemed to have been in existence when K and L divided the properties between them; the partition, having been effected without his joinder, the same had to be ignored; and, therefore, he was entitled to a half share in the properties.
Alternatively, it was urged that the appellant was entitled to get by succession, half share of the properties that fell to the share of K. Dismissing the appeal, HELD.
(i) The appellant must be deemed to have been adopted in 1912 when R died.
Therefore, he must be deemed to have been a coparcener in his adoptive father 's family when K and L partitioned the properties in 1933.
The partition having been effected without his consent, it is not binding on him; but from this it cannot be said that K and L did not separate from the family.
So far as the quantum of his share is concerned it must be determined after taking into consideration the fact that K & L separated from the family in 1933.
The appellant can ignore the actual partition,by meters and bounds effected by K and L and ask for a repartition of the properties but his adoption by itself cannot reunite the divided family.
The rights of an adopted son cannot be more than that of his adoptive father.
The fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adopted son relates to the estate of the adoptive father.
If the appellant 's adoptive father was alive in 1933, when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
Therefore, the appellant 's claim for a half share in the family properties is unsustainable.
T204 G; 207 B] 201 The alternative claim of the appellant is also not tenable because K disposed his share by a will and secondly, even if he had not disposed of his share, the same would have developed on L by succession and the property once vested cannot be divested as in that property the plaintiffs adoptive father had no right of his own.
The doctrine of relation back is only a legal fiction.
When K. died, plaintiff 's adoption father was not alive.
The revolution of K 's property must be held to have taken place as soon as K died.
The property could not have remained in a suspended animation till the appellant was adopted.
[2O4G] Shrinivas Krishnarao Kango vs Narayan Devji Kango and ors.
; , ; Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil, 70 I.A. 232; Bajirao and Ors.
vs Ramkrishna, I.L.R. and K. R. Sankaralingam Pillai and Anr.
vs Veluchami Pillai, Minor, I.L.R. , referred to.
Ramachandra Srinivas vs Ramakrishna Krishna Rao, A.I.R. 1952 Bom.
453, disapproved.
(ii) Both the courts below found the sale in question valid as the same was effected to meet family necessities.
As the appellant did not seek an accounting from the 2nd defendant, and as no case was made out for requiring the second defendant to account in respect of moneys received by him as Karta and as the plaint did not state that there was any cash in the hands of the 2nd defendant, the High Court was justified in reversing the decree of the trial court directing the payment of Rs. 1500 to the appellant.
[203 E]


Input:
Appeal No. 296 of 1955.
Appeal by special leave from the judgment and decree dated September 8, 1952, of the Punjab High Court in Civil Regular Second Appeal No. 327 of 1948, arising out of the judgment.
and decree dated November 21, 1947, of the Court of District Judge, Amritsar, in Appeal No. 212 of 1946 from the judgment and decree dated August 20, 1946, of the Subordinate Judge, 1st Class, Amritsar, in Suit No. 297 of 1945.
Achhru Ram and R. section Narula, for the appellant.
Gurbachan Singh and Madan Lal Kapur, for the respondent.
April 23.
The Judgment of the Court was delivered by SARKAR, J.
The suit out of which this appeal arises concerns the right to certain plots of land in village Sultanwind, Tehsil and District Amritsar in the Punjab.
It raises a question of the Punjab customs.
Sahib Singh, the last male owner of the lands in dispute, died in December 1918 leaving a widow Nihal Kaur.
The widow succeeded to the lands but on tier remarriage soon thereafter, she was divested of them and they passed to Sahib Singh 's mother, Kishen Kaur who died on November 12,1942.
On Kishen Kaur 's death disputes arose between Sahib Singh 's sister, Jeo, the respondent in this appeal 783 and his agnatic relation, the appellant Ujagar Singh, as to the ownership of the lands.
The Tehsildar entered the respondent 's name as the owner of the lands in the revenue records but on appeal by the appellant, the Collector of Amritsar directed the name of the respondent to be removed and the appellant 's name to be entered in its place.
On June 11, 1945, the respondent filed a suit against the appellant asking for a declaration that she was the owner of the lands.
In paragraph 3 of the plaint it was stated that the respondent " came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara Custom prevalent in Mauza Sultanwind among the people of the Got (Sub caste) Bheniwal and the custom of the family of her father ".
In paragraph 5 it was stated, " According to the afore mentioned special custom, the right of inheritance of the daughter and her descendants and in their absence that of the ' sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree; no matter whether the property is ancestral or self acquired.
" The defence taken in the written statement of the appellant was that " According to the General Custom and the Custom of the District of Amritsar, the plaintiff as his sister is in no way the heir of the property left by (her) brother in presence of the reversionary heirs, no matter whether the land is ancestral qua reversionary heirs or it is self acquired.
There is no particular family, Got or village custom of the District of Amritsar.
" In substance, the position taken by the appellant was that he as the agnatic relation or collateral of Sahib Singh was entitled to the properties under the general custom of the Punjab in preference to the respondent.
The question that the suit involved was, who was the preferential heir of Sahib Singh.
The suit was heard by the Subordinate Judge, Amritsar, who found that the appellant was a collateral of Sahib Singh of the eighth degree and that the properties in dispute were not ancestral.
He held that the respondent had based her claim on a special 784 custom but bad not been able to establish it by necessary evidence and therefore the appellant was to be considered as the preferential heir under the general Custom.
The respondent then appealed to the District Judge, Amritsar.
That learned Judge confirmed the findings of the Court below that the land was not ancestral and that the appellant was a collateral of Sahib Singh of the eighth degree.
He then held that the general custom of the Punjab among the agriculturists which the parties were, was, as stated ' in para.
24 of Rattigan 's Digest of the Customary Law of the Punjab, that " sisters are usually excluded as well as their issues " and therefore put the onus of proving any special custom entitling the sister to succeed on the respondent.
On the evidence led by the respondent he came to the conclusion that she had failed to discharge the onus and thereupon dismissed the appeal.
The respondent took the matter up in further appeal to the High Court of Punjab.
Kapur J. who delivered the main judgment of the High Court, observed that para.
24 of Rattigan 's Digest did not lay down the custom correctly and that the statement there was too broad.
He held that the onus of proving the custom whereby a sister was excluded from the inheritance lay on the appellant and that he had failed to discharge that onus.
He also held that even if the onus lay on the respondent of proving a custom giving her the right to succeed, she had succeeded in discharging that onus.
Soni J., another member of the bench which heard the appeal, delivered a short judgment in effect agreeing with the view of Kapur J.
In the result the High Court allowed the appeal and upheld the respondent 's claim.
The present appeal is from this judgment of the High Court.
It is not in dispute that the parties belong to an agriculturist Jat tribe and are members of the Bheniwal sub caste of village Sultanwind in Tehsil and District Amritsar.
The genealogical table on the record would show that the appellant was a ninth degree collateral of Sahib Singh and this is what the High Court found.
It was not in dispute in the High Court 785 nor before us that the properties were not the ancestral properties of Sahib Singh.
Mr. Achhru Ram appearing for the appellant contended that the learned Judges of the High Court were wrong in placing the onus on his client.
His contention was that the general custom in the Punjab among the agriculturist tribes was that sisters were excluded by collaterals in the matter of succession to both ancestral and non ancestral properties and that custom had been correctly set out in Rattigan 's Digest.
That being so, according to him, the respondent was not entitled to the properties unless she established a special custom of the tribe or family, entitling her to succeed in preference to the collaterals and the onus of doing this must, therefore, be on her.
He contended that she had failed to discharge the onus.
Eminent Judges have from time to time pointed out that the use of the expression " the general custom of the Punjab " is inaccurate.
Plowden, J. in Ralla vs Buddha (1) at page 223 said, " It seems expedient to point out that there is strictly speaking no such thing as a custom or a general custom of the Punjab, in the same sense as there is a common law of England,a general custom applicable to all persons throughout the province, subject (like the English common law) to modification in its application, by a special custom of a class, or by a local custom.
" Young C. J. said in Mussammat Semon vs Shahu (2), "There is no such thing as general customary law known to the Legislature ' " In Kesar Singh vs Achhar Singh (3 ) Addison A. C. J. said that the expression "general custom of the Punjab " was clearly a misnomer.
The reason given for saying that there is no such thing as general custom in the Punjab is that custom there is tribal and even with the same tribe there are different customs for different localities.
So Sir Charles Roe had said in his Tribal Law in the Punjab, " Under such circumstances, seeing that the origin of all the tribes is not the same, and that even with (1) 50 P.R. I893.
(2) Lah.
10, 11.
(3) Lah.
101, 106.
99 786 tribes of the same origin local and social conditions have greatly differed, it would be impossible that there could be a single body of Customary or Tribal law, common to the whole of the Punjab ": see Rattigan 's Digest (13th Ed.) p. 157.
Each tribe has its own customs and in the Punjab there are many tribes.
None the less however the expression " general custom of the Punjab " has been frequently used.
It has been used for a purpose which appears clearly from the observations of Addison J. in Kartar Singh vs Mst.
Preeto (1), set out below: " In fact it had become customary even in the Courts to look upon custom as a thing generally followed and to place the burden of proof upon any person who asserted that his custom was not the same as the so called general custom of the Province.
If this person succeeded in proving the custom he alleged, the name, I special custom ' was given to it.
" The reported decisions very often proceeded on the basis that if there was a general custom, it did not have to be proved; that anybody wishing to rely on a custom at variance with the general custom, must prove it or fail in his claim.
It seems to us wrong to say that a general custom need never be proved.
It is stated in Halsbury 's Laws of England (3rd Ed.) Vol. 11, article 319 at p. 171, " All customs of which the Courts do not take the judicial notice must be clearly proved to exist the onus of establishing them being upon the parties relying upon their existence ".
No distinction is here made between a general custom and other customs.
Section 48 of the Evidence Act also contemplates the Proof of a general custom.
In Daya Ram vs Sohel Singh Robertson J., said at p. 410 ". .
It lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. ') These observations were approved by the Judicial (1) Lah.
296, 299.
(2) 110 P.R. 1906.
787 Committee in Abdul HuSsein Khan vs Bibi Sona Dero (1).
It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved.
Under section 57 of the Evidence Act however nothing need be proved of which courts can take judicial notice.
Therefore it is said that if there is a custom of which the courts can take judicial notice, it need not be proved.
Now the circumstances in which the courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Rama Rao vs Raja of Pittapur (2), in the following words, " When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case.
" When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under section 57(1) of the Evidence Act.
It appears to us that in the courts in the Punjab the expression " general custom " has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh vs Mt. Taro and Sukhwant Kaur vs Balwant Singh (4).
Is there then a custom that sisters are excluded by collaterals in the matter of inheritance to non ancestral properties of which the courts ought to take judicial notice? Mr. Achhru Ram contends that such is the position and it is recognised as such in Rattigan 's Digest paragraph 24.
There is no, doubt that Rattigan 's Digest is of the highest authority on questions of the customs of the Punjab.
But we can take judicial notice of a statement of custom therein contained only if it has been well recognised by decisions of courts of law.
We have been taken through a large number of reported decisions on the question and it seems to us that the custom as stated by Rattigan (1) (1917) L.R. 45 I.A. 1O, 13.
(3) A.I.R. 1951 Simla 239.
(2) (1918) L.R. 45 I.A. 148, 154, 155.
(4) A.I.R. 1951 Simla 242.
788 cannot be said to have been so well recognised as to have become entitled to judicial notice from courts without further proof.
We find in the law reports a very large number of cases on the subject of a sister 's right to inherit, one group of which takes the view that there is no custom excluding sisters from inheritance when there are collateral relations of the last male holder and another group taking the contrary ,view.
It would neither be possible nor profitable to refer to all these cases here but some may be mentioned.
We shall first mention the cases which do not recognise that a custom excluding sisters from the inheritance exists.
In Makhan vs Musammat Nur Bhari (1) certain seventh degree collaterals of the last male holder sued the latter 's sister for possession of his properties.
No claim appears there to have been made by the collaterals that there was any general custom entitling them to succeed in preference to the sister.
The case having been returned to the Chief Court after the enquiry directed by it, Elsmie, J. held: " The result of the further enquiry is to show that the plaintiffs have been unable to prove that they are by custom entitled to exclude the sister of the last owner.
On the other hand, there is some evidence, though not much, to show that sisters have inherited.
It is indeed quite clear that no well defined custom is made out one way or the other." The result was that the sister was held entitled to a share of the properties that came to her under the Mohammedan law, the parties being Mohammedans and no custom having been proved one way or the other.
This was a case decided in 1884.
In Sheran vs Mussammat Sharman (2) in which the collaterals were the plaintiffs and the sister the defendant, it was observed: " On the question of inheritance, for the plaintiffs it has been contended that under the general Customary Law of the Punjab governing agricultural communities, the collaterals in the male line, fifth in (1) 116 P.R. 1884.
(2) 117 P.R. 1901.
789 descent from the common ancestor, exclude sisters, but we are not prepared to Assent to the wide proposition that such a general custom exists.
" It was also there held that there was no general custom in the Mooltan District whereby collaterals were preferred to a sister.
In the end, no custom having been found to exist favouring` either side and the parties being Mahomedans, the Mohammedan law was applied and the sister got a share.
In Bholi vs Kahna (1), it was remarked that paragraph 24 of Rattigan 's Digest was rather broadly stated and hardly warranted by the authorities quoted for and against.
In Mussammat Bhari vs Khanun (2), where the contest was between the ninth degree collaterals and a sister, the onus of proving that the collaterals were entitled to succeed in preference to the sister was placed on the collaterals who were the plaintiffs in the suit, and as the collaterals were unable to discharge the onus placed on them, they lost.
In Mst.
Fatima Bibi vs Shah Nawaz (3), it was said that the general rule laid down in paragraph 24 of Rattigan 's Digest was open to the criticism that it was based mainly on authorities regarding ancestral property and on the generally accepted principles of agnatic succession which do not apply in the case of self acquired property.
It was also held that the reported decisions were not such that a general rule could be said to exist on the question of a sister 's right to succeed which was so widely accepted that it would justify a court in coming to any definite conclusion based on custom.
In Samo vs Sahu (4) it was said that the court below was wrong in placing the onus on the sister in a contest between her and the collaterals of the fourth degree, for, there was no such thing as general customary law known to the legislature and that Rattigan 's Digest on Customary Law merely 'showed that according to judicial decisions a large number of tribes were governed by certain customs in certain matters.
(1) 35 P.R. 1909.
(2) 20 P. R. 1919.
(3) Lah.
(4) Lah.
10, 11.
790 In Jagat Singh vs Puran Singh (1), a case decided in 1944, it was observed at p. 369: " As I have indicated above there is no rule of special custom when a contest arises between a sister or a sister 's $on against a near collateral.
Then one has to fall back on general custom.
There is no rule of general custom on that point.
It is no doubt true that in paragraph 24 of Rattigan 's Digest it has been stated that sisters and their sons are in general not heirs but that has been said in very wide terms.
It may be applicable to cases of ancestral property, but it is difficult to say there is any special rule of general custom when a contest arises between a sister and collaterals of the third or fifth degree and the property is self acquired.
" In this case neither a general nor a special custom having been proved to exist, the Court based its decision on the personal law of the parties, namely, the Hindu law.
The cases decided since 1950 all take the view that there is no general custom giving collaterals preference to sisters in matters of inheritance.
They are Sukhwant Kaur vs Balwant Singh (supra), Maulu vs Mst.
Ish`ro (2), Harnam Singh vs Mst.
Gurdev Kaur (3) and Shrimati Bui vs Ganga Singh (4).
We now come to the other group of cases which seem to recognise the general custom excluding sisters from inheritance when there are collaterals of the last male holder.
In Hamira vs Ram Singh (5), the Court approved of the decision in Shidan vs Fazal Shah (6), the judgment in which is set out as an appendix to the report.
In the latter case the contest was between a sister and collaterals of the seventh degree and it was held that the onus of proving a custom entitling the sisters to succeed rested on them and this was based on paragraph 24 of Rattigan 's Digest, an entry in the Riwaji i am which applied to the parties and certain reported decisions.
Obviously, Rattigan was relied upon.
(1) (2) (1050) (3) (4) (5) 134 P.R. 1907.
(6) (1907) P.R. at p. 646.
791 In Harnamon vs Santa Singh (1) it was said that the burden of proving that the sister was entitled to succeed in preference to a collateral lay on her.
The same view was taken in Musammat Nurbhari vs Abdul Ghani Khan (2), Mussammat Hussein Bibi vs Nigahia (3), Jagu vs Bhago (4), Began vs Ali Gohar (5), Kirpa vs Bakshi Singh (6) (case decided in 1944), Santi in 1944) and Mussammat Ratni vs Harwant Singh (7).In some of these cases paragraph 24 of Rattigan 's Digest was expressly approved of as applying to nonancestral properties.
It will thus appear that there is a formidable array of authorities in support of either view.
In this state of conflict of judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it.
It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions, as stated in Hassan vs Jahana (8) and that the decisions for the last ten years are uniformly against the view expressed in paragraph 24 of Rattigan 's Digest.
We there fore come to the conclusion that the High Court was right in its view that it could not be held on, the authority of paragraph 24 in Rattigan 's Digest that a general custom excluding sisters from inheritance as against collaterals, existed.
It was then said that in the plaint it had been admitted by the respondent that there was a general custom as alleged by the appellant and so no proof of that general custom was required in this case.
We do not think this contention is justified.
No doubt in her plaint the respondent referred to a custom entitling her to succeed and termed it a special custom.
We are unable to read the reference to a special custom as (1) I. (2) 100 P.R. 1916.
(3) (4) (5) A.I.R. 1934 Lah.
(6) (7) (8) 71 P.R. 1904.
792 amounting to an admission of a general custom or its terms.
That being the position we have to see if either side led any evidence in support of its claim.
So far as the appellant is concerned he has relied on the alleged general custom and sought to support it by reference to paragraph 24 of Rattigan 's Digest.
It view of what we have said earlier we do not think that Rattigan 's Digest can be taken as correctly laying down the custom on the point.
Neither do we think that the reported decisions show the existence of any such general custom.
There is nothing else on which the appellant has sought to rely.
We therefore think that the appellant has failed to establish the custom alleged by him.
We have next to see whether the respondent has proved the custom which she set up.
We think that she has.
The High Court has discussed the evidence led by the respondent, and found it acceptable.
We have no reason to take a contrary view. 'Some reference to the evidence may now be made, exhibit P. 4, Settlement Record of 1852, proves that in the village Sultanwind Sajja Singh and Majja Singh succeeded to the properties of Nodh Singh as his sister 's sons in the presence of collaterals.
Mr. Achhru Ram contended that the statement in exhibit P. 4, that Sajja Singh and Majja Singh were the sister 's sons of Nodh Singh was wrong for, in exhibit P. 5, the Settlement Records of 1891 and 1892, they were described as the daughter 's sons of Nodh Singh and Baghel Singh, his brother.
He contended that on the authorities it is clear that on a conflict between two settlement records the later one in date has to be accepted.
That appears to have been held in a number of cases of which Alo vs Sher (1) may be mentioned.
But it seems to us that this is a point which should have been raised in the trial Court which does not appear to have been done, for, then the respondent could have led evidence to show which of the two settlement records put the matter correctly.
exhibit P. 9 which is a settlement record of 1852 of the same village, shows that on Gandhi 's (1) A.I.R. 1927 Lah.
793 death his sister 's son succeeded to his properties though there were collaterals.
Mr. Achhru Ram 's comment was that in 1852 things were so unsettled in the Punjab that no one cared for lands and that was the reason why the collaterals allowed Gandhi 's sister 's son to succeed to his properties.
This is an explanation which we are unable to accept.
Exhibit P. 7 is a settlement document of the Bheniwal tribe in the village Sultanwind prepared in 1891 92.
It shows that Mst.
Chandi, the sister of Buta Singh, succeeded to his properties.
It was said that the pedigree did not show that any collateral was alive.
But this is not right because it shows that Buta Singh 's great grand uncle, Tara Singh, was alive.
Mr. Achhru Ram says that that must be a mistake and Tara Singh who was Buta Singh 's great grand uncle could not have been alive when the latter died.
This again is a matter which should have been cleared up in the trial Court and we do not think it right to speculate about it.
It remains to consider two entries in the Riwaji iam.
We have first the Riwaji i am of 1913 14.
The entry there is in this form : " Q. 70.
Does property ever devolve on sisters and/or upon their sons ? A.
All tribes.
The property never devolves upon sisters and their issues.
" At the foot the case of Bholi vs Kahna (1) is cited.
Now it is well established that Riwaji i am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise.
So it was stated in the Full Bench decision of the Lahore High Court in Mst.
Hurmate vs Hoshiaru (2 ) at p. 235: " It is reasonable, therefore, to assume that when manuals of Customary law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property (1) 35 P.R. 1909.
(2) Lah.228, 235.
100 794 only.
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general.
Similarly the use of the term " in no case " or " under no circumstances " would refer to ancestral property only and not be extended so as to cover selfacquired property unless the context favoured that construction The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab.
In the Riwaji i am of 1913 14 we find nothing in the context to show that the answer there recorded was intended to apply to self acquired property.
That being so, it does not prove any custom against the right of a sister to inherit the self acquired property of her brother.
The other Riwaji i am was that of the year 1940.
It was in these terms : " Q. 68.
Does property ever devolve upon sisters or sister 's son ? A. All tribe. (1) In the case of an unmarried sister or sisters the property is entered in her or their name till marriage.
(2) Married sister or sisters or their descendants did not get the property in any case.
" Here again there is nothing in the context to indicate that the answers were given in regard to nonancestral property.
So this does not help the appellant either.
In this Riwaji i am eight instances are given.
Some of them deal with the self acquired property.
That does not in our opinion indicate that the answer recorded in the Riwaji i am was intended to cover succession to self acquired property also.
It is not disputed that the instances mentioned under the entries in the Riwaji i am are often collected by the officer in charge of the preparation of the record.
It is impossible to say whether any, and if so, which, instance recorded in the Riwaji i am had been supplied 795 by the tribesmen in answer to questions put to them by the Settlement Officer.
It is not possible therefore to say that there is any indication in the instances in this Riwaji i am entry that the answers were intended to cover self acquired property also.
Now of the eight instances given in the Riwaji i am two are concerned with self acquired property where there were no collatetals and the sisters were allowed to succeed.
The remaining six are concerned with ancestral property.
In four of these, the last male owner died without leaving any reversioner and in each such case the married sisters succeeded to the property.
In the fifth one,, the sisters were unmarried at the time of the brother 's death and they were allowed to take possession of the properties.
But this instance shows that on their marriages taking place they were dispossessed of the properties which apparently thereupon went to the, collaterals.
These seven instances therefore do not help either side.
They show that sisters were allowed to succeed in respect of both kinds of properties in the absence of any collaterals and that sisters were on their marriages divested of the ancestral properties to which they had succeeded on their brothers ' deaths, they being at that time unmarried.
The last instance deals with the Rajput Mohammedan tribe of Tehsil Ajnala which is in the District Amritsar, the district to which the parties to the present litigation belong.
This instance shows that a sister was allowed to succeed to the ancestral property left by the brother in preference to his collaterals of the sixth degree.
This therefore is an instance of a custom in a neighbouring Tehsil under which sisters were allowed to succeed in the presence of collaterals nearer in degree than the collateral in the present case.
In these circumstances we agree with the learned Judges of the High Court that the respondent was able to prove a custom whereby a sister was entitled to succeed in preference to the collateral relations of her brother.
We think it also right to say that even if it had been held that the respondent was not able to establish a custom entitling her to succeed she would get the 796 properties under the Hindu law.
The parties are Sikhs to whom the Hindu law applies.
Since the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is an heir under the Hindu law in, preference to collaterals and that Act would be applicable to the devolution in this case.
It is however said that as the respondent had not made any claim in the plaint on the, basis of Hindu law but on the contrary relied on custom, it was not open to her to fall back on the Hindu law on failing to establish the custom.
We do not think that this is the correct position.
Section 5 of the , provides that in questions regarding succession, the rule of decision shall be (a) any custom applicable to the parties; (b) the personal law of the parties except in so far as modified by custom or legislation.
In the Full Bench case of Daya Ram vs Sohil Singh (1) Robertson, J., said at p. 410: "It therefore appears to me clear that when either party to a suit sets up " custom " as a rule of decision, it lies upon him to prove the custom which be seeks to apply.
If he fails to do so clause (b) of section 5 of the applies and the rule of decision must be the personal law of the parties subject to other provisions of the clause.
" As we have earlier said this observation was approved by the Judicial Committee in Abdul Hussain Khan vs Bibi Sona Dero (2).
In Fatima Bibi vs Shah Nawaz (3), a case to which we have earlier referred, the Court allowed the plaintiff 's sisters, who had based their claim on custom and not on the personal law, to fall back on Mohammedan law, the personal law of the parties, on their failure to establish the custom, no custom against them having been proved by the collaterals.
There are a number of other authorities, to which it is not necessary to refer, in which personal law was resorted to when no custom on either side was established.
We agree that that is the correct view to take.
We therefore think that even if the respondent had been unable to prove the custom in (1) 110 P.R. 1906.
(2) (1917) L.R. 45 I.A. 10, 13.
(3) Lah.
797 her favour she is entitled to succeed in the suit on the basis of the personal law of the parties, namely, the Hindu law.
Further, we see no prejudice to the appellant if such a course is adopted.
It is not disputed that if the Hindu law applied, the respondent would be entitled to the properties in preference to the appellant.
The only defence to the claim under the Hindu law that the appellant could take would be a custom.
The custom on which the appellant relied for his case was a general custom entitling the collaterals to succeed in preference to sisters.
We have earlier held that no such general custom has been proved in this case.
There.
fore it seems to us in the interest of justice and for the reason that litigation should come to an end that it is right that the respondent should succeed in the suit as her brother 's heir under the Hindu law.
There remains one other matter to be mentioned.
The respondent had filed an application for an order that by reason of certain agreements and certain proceedings arising out of the decree in her favour passed in this case by the High Court, the appellant should not have been given leave by this Court to institute the present appeal and the leave granted under article 136 of the Constitution should be revoked.
As, in our view, the respondent succeeds on the merits of the case we think it unnecessary to express any opinion on this question.
In the result we dismiss the appeal with costs.
Appeal dismissed.

Output:
The question involved in this appeal was whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother 's self acquired property, to a collateral.
The respondent, the sister, relied on a custom, which she termed a special custom, and on that basis claimed her brother 's property, and the appellant, a collateral of the 8th degree of her brother, resisted her claim relying solely on a general custom stated in paragraph 24 Of the Rattigan 's Digest of the Customary Laws of the Punjab to the effect that sisters were excluded by collaterals in the matter of inheritance to non ancestral property.
The Subordinate judge, and the District judge on appeal, held in favour of the appellant but the High Court reversed their decisions holding that, there was no such general custom as recorded by Rattigan and that it was in any event for the appellants to prove that custom and this he had failed to do.
The High Court also held that the respondent had succeeded in proving the custom set up by her.
It was contended on behalf of the appellant that the High Court was in error in placing the onus of proving the custom on him since the custom was a general custom as stated by Rattigan.
Held, that no distinction could be made between a general custom or other customs so far as the need of proof was con cerned and the ordinary rule was that all customs, general or otherwise, had to be proved unless by repeated recognition by the courts a custom had become entitled to judicial notice under section 57(1) of the Evidence Act.
Raja Rama Rao vs Raja of Pittapur, (1918) L.R. 45 I.A. 148, relied on.
Although there could be no doubt that Rattigan 's Digest was of the highest authority on questions of custom of the Pun jab, it was not possible, regard being had to the formidable array of conflicting decisions of the courts as to its existence, to take judicial notice of the custom mentioned in paragraph 24 of the Digest, without further proof.
Case law reviewed.
Although the respondent had in the plaint relied on a custom and termed it a special custom, that could not amount to an 782 admission which would obviate the necessity of proof of the general customs or its terms by the appellant.
Even supposing that the High Court was not correct in its finding that the respondent had proved the custom entitling her to succeed, as the custom set up by the appellant had not also been established, section 5 Of the , applied and the case had to be decided by the personal law of the parties.
The respondent was entitled to base her claim on the personal law although in her plaint she had relied on a custom.
The personal law of the parties was the Hindu law and the respondent was entitled to succeed under that law also.
Daya Ram vs Sohel Singh, 110 P.R. 1906, Abdul Hussein Khan vs Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst.
Fatima Bibi vs Shah Nawaz, Lah. 98, relied on.


Input:
iminal Appeal No. 62 of 1951.
Appeal by special leave granted by the Supreme Court of India on the 14th May, 1951, from the Judgment and Order dated the 9th August, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) in Criminal Appeal No. 319 of 1950 arising out of the Judgment and Order dated the 6th January, 1950, of the Court of the Sub Divisional Magistrate F.C., Ratnagiri City, in Criminal Case No. 77 of 1949.
774 M. C. Setalvad, Attorney General for India (G. N. Joshi and P. A. Mehta, with him) for the appellant.
K. B. Chaudhury for the respondent.
March 13.
The Judgment of the Court was delivered by MAHAJAN J.
The respondents were charged with having committed an offence punishable under section 9(2) read with section 4 of the Bombay Building (Control on Erection) Act, 1948, for commencing the work of erection of a cinema theatre without obtaining the necessary permission from the controller of buildings, Bombay.
The sub divisional magistrate, Ratnagiri, held that the Act not having been validly extended to Ratnagiri, no permission of the controller of buildings was necessary for the construction.
He accordingly acquitted them.
On appeal by the State Government, the order of acquittal was maintained by the High Court.
This appeal is before us by special leave from the concurrent orders of acquittal.
Special leave was granted on the Attorney General for India undertaking on behalf of the State Government of Bombay that whatever the decision of the court might be, no proceedings will be taken against the respondents in respect of the subject matter under appeal.
At the hearing of the appeal it was made plain by the learned Attorney General that no adverse consequences will flow to the respondents or to their building being completed, by the acquittal order being pronounced as bad, and that the State Government will not in any way interfere with the respondents when they take steps to complete the building, the construction of which was commenced without the permission of the controller.
The State Government merely wants to have the question of law decided as a test case because the decision of the High Court, if left unchallenged, would have far reaching effects.
The facts giving rise to the prosecution of the respondents, shortly stated, are these: There was in force in the State of Bombay an Ordinance, Bombay 775 Building (Control on Erection) Ordinance, 1948.
It was applicable to certain areas specified in the schedule.
The district of Ratnagiri was not one of the areas therein specified.
Sub section (4) of section (1) of the Ordinance empowered the provincial government by notification in the official gazette to extend to any other area specified in such notification its provisions.
It further empowered the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purpose as may be specified in the notification.
On 15th January.
1948, the Government of Bombay issued the following notification: " In exercise of the powers conferred by sub section (4) of section 1 of the Bombay Building (Control on Erection) Ordinance, 1948 (Ordinance No. I of 1948), the Government of Bombay is pleased to direct that the said ordinance shall also extend to all areas in the province of Bombay other than the areas specified in the schedule to the said Act and that it shall apply to said areas only in respect of buildings intended to be used for the purpose of cinemas, theatres and other places of amusement or entertainment.
" The consequence of this notification was that in the district of Ratnagiri no cinema building could be commenced without the permission of the controller after that date.
Ordinance I of 1948 was repealed by Act XXXI of 1948, The Bombay Building (Control on Erection) ' Act, 1948".
It was made applicable to areas specified in the schedule.
Sub section (3) of section I authorized the provincial government by notification in the official gazette to direct that it shall also extend to any other.
areas specified therein.
It further authorized the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purposes as may be specified in the notification.
By section 15(1) of the Act it was pro vided that `` The Bombay Building (Control on Erection) Ordinance, 1948, is hereby repealed and it is hereby 776 declared that the provisions of sections 7 and 25 of the Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment.
" The respondents started constructing a cinema at Ratnagiri on 15th August, 1948, after the commencement of Act XXXI of 1948 without obtaining the permission of the controller of buildings as required by the Act under the impression that the Act had application only to areas specified in the schedule and the district of Ratnagiri not having been specified in the schedule, the provisions of the Act had no application to that area.
As above stated, they were prosecuted for committing an offence under section 9(2) read with section 4 with the results above mentioned.
The order of acquittal was based on the ground that although the notification extended the scope of the ordinance to area, other than those which were mentioned specifically in the schedule thereto, it did not extend to those areas the provision, of the Act in spite of the application of the provisions of section 25 of the Bombay General Clauses Act.
In Judgment, the construction placed by the High Court on the language of section 15 is erroneous and full effect has not been given to its provisions or to the provisions of section 25 of the Bombay General Clauses Act.
We think on a true construction of section 15 of the Act and section 25 of the Bombay General Clauses Act, the notification issued on 15th January, 1948, under the ordinance continued in force under Act XXXI of 1948 and that by it the provisions of the Act stood extended to other areas in the State to the extent indicated in the notification.
Section 25 of the Bombay General Clauses Act, 1904, provides `` Where any enactment is, after the commencement of this Act, repealed and re enacted by a Bombay Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye law or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re enacted, 777 continue in force and be deemed to have been made or issued under the provisions so re enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, bye law or form made or issued under the provisions so re enacted.
" It cannot be contended that the notification was inconsistent with the provisions of Act XXXI of 1948.
It is clearly in accordance with its scheme and purpose.
The High Court did not combat the proposition that in view of the provisions of section 25 of the Bombay General Clauses Act the notification continued in force after the coming into force of the Act.
It, however, held that even if the notification was taken as having been issued under Act XXXI of 1948, the notification merely extended the ordinance to these areas and not the Act.
In the opinion of the High Court, the word "Act " instead of " Ordinance " could not be read in the words of the notification by the force of section 25 of the Bombay General Clauses Act and the notification literally construed, only extended the ordinance to those areas.
It was considered that if the intention was to extend the Act to these areas, such an intention could only be carried out by enacting in Act XXXI of 1948 a proviso like the one enacted in the Cotton Cloth and Yarn (Control) Order, 1945, or by use of language similar to the one used in section 9 of the Bombay General Clauses Act, 1904.
The proviso in the Cotton Cloth and Yarn (Control) Order is in these terms:" Provided further any reference in any order issued under the Defence of India Rules or in any notification issued thereunder to any provision of the Cotton Cloth and Yarn (Control) Order, 1943, shall, unless a different intention appears, be construed as reference to the corresponding provision of this Order.
" We do not find it possible to support this line of reasoning.
It appears to us that the attention of the learned Judges was not pointedly drawn to the concluding words of section 15 (1) of the Act.
It is specifically provided therein that the provisions of 778 sections 7 and 25 of the Bombay General Clauses Act shall apply to the repeal as if the ordinance were an enactment.
The ordinance by use of those words was given the status of an enactment and therefore the word "ordinance" occurring in the notification has to be read accordingly and as extending the Act to those areas, and unless that is done, full effect cannot be given to the 'Concluding words used in section 15(1) of the Act.
The concluding words of section 15(1) of the Act achieve the purpose that was achieved in the Cotton Cloth and Yarn (Control) Order by the "proviso.
" By reason of the deeming provisions of section 15, the language used in the notification extending the ordinance to those areas as a necessary consequence has the effect of extending the operation of the Act to those areas.
When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
[Vide Lord Justice James in Ex parte Walton : In re Levy(1)].
If the purpose of the statutory fiction mentioned in section 15 is kept in view, then it follows ,that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court.
In East End Dwellings Co. Ltd. vs Finsbury Borough Council(2), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows: " If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. .
The statute says that you must imagine a certain state of affairs; it does not (1) , at P. 756, (2) 779 say 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.
" The corollary thus of declaring the provisions of section 25 of the Bombay General Clauses Act applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment.
For the reasons given above we are satisfied that the High Court was in error in holding that the notification only extended the provisions of the ordinance to Ratnagiri district and not the provisions of Act XXXI of 1948 to that area.
It may, however, be observed that the manner adopted by the legislature in keeping alive the notifications issued under the ordinance by use of somewhat involved language in matters where the rights of the citizens regarding the construction of buildings were being affected was not very happy.
It has certainly led three judges to think that the intention of the legislature was not brought out by the language.
People who are not lawyers may well be misled into thinking that the notification issued under the ordinance has terminated with its repeal and not having been re issued under the Act, the provisions of which again in clear language provide that it only extends to areas specified in the schedule and which gives power to extend it, that those areas are excluded from the scope of the Act.
It would have been much simpler if the legislature made its intention clear by use of simple and unambiguous language.
Because of the undertaking given by the learned Attorney General not to proceed any further in this matter, it is not necessary to set aside the acquittal order of the respondents, which will remain as it stands.
A appeal allowed.
Acquittal not set aside.

Output:
The Bombay Building (Control on Erection) Ordinance of 1948 applied to certain areas mentioned in the Schedule to the Ordinance, and in exercise of the powers vested in it by the Ordinance the Government extended its provisions to certain other areas including Ratnagiri in respect of buildings intended to be used for cinemas and other places of entertainment, by a notification of the 15th January,.
This Ordinance was repealed by the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to those of the earlier Ordinance.
Section 15(1) of the Act repealed that Ordinance and declared that " the provisions of sections 7 and 25, Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment.
" Held, reversing the judgment of the Bombay High Court, that on a true construction of section 15(1) of the above said Act and section 25 of the Bombay General Clauses Act, 1904, the notification issued on the 15th January, 1948, under the Ordinance continued in force under the Act of 1948 and that by it the provisions of the Act stood extended to other areas in the State including Ratnagiri to the extent indicated in the notification.
Ex parte Walton: In re Levy and East End Dwelling Co. Ltd. vs Finsbury Borough Council ([1952] A.C. 109) referred to.