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Appeal No. 2460 of 1966.
Appeal by special leave from the judgment and order dated November 9, 1960 of the Allahabad High Court in Second Appeal No. 2074 of 1944.
J. P. Goyal and Sobhag Mal Jain, for the appellants.
Yogeshwar Prasad and M. V. Goswami, for the respondent.
The Judgment of the Court was delivered by Wanchoo, C. J.
The main question raised in this appeal by special leave is whether Parjoti land (i.e. a permanent lease hold interest) in the city of Benaras can be preempted.
The respondent brought a suit for pre emption of the land in dispute, which was sold under a sale deed dated February 6, 1942.
The case of the respondent was that he was owner of a house and land to the south of the property sold.
He based his claim to pre emption as a shafi i jar (i.e. pre emptor by right of vicinage) and also as a shafi i khalit (i.e. pre emptor by right of appendages).
His case was that there was such a custom of pre emption prevailing in the whole of the city of Benaras and therefore he was entitled to pre empt the property sold which was a khandar (i.e. a house in ruins).
The plaint made the ususal allegation that the necessary talabs had been performed and the respondent was entitled to pre empt the sale.
The suit was resisted by the vendee, whose legal representa tive is the appellant before this Court.
The vendee denied that there was any custom of pre emption in the city of Benaras, and particularly, in the mohalla in which the property in dispute was situate.
It was further alleged that even if the existence of custom of pre emption was proved, it could not be applied to parjoti land (i.e. lease hold land).
It was also denied that the respondent was either Shafi i jar or shafi i khalit.
It was further pleaded that as the vendors and the vendee lived in Calcutta, they were not 556 governed by the custom of pre emption, if any, prevalent in the city of Benaras.
The performance of talabs was also disputed.
The trial court framed four issues, namely, (i) whether the respondent had a right to sue, (ii) whether the custom of pre emption prevailed in Mohalla Baradeo, in the city of Benaras, (iii) whether the vendors and the vendee, as residents of Calcutta, were governed by the custom of pre emption, and (iv) whether the talabs had been performed.
The trial court held that the necessary talabs had been per formed.
It also held that the respondent was the 'owner of the contiguous house and had therefore the right to sue.
On the question of custom, the trial court held that there was a custom of preemption in the locality, which was co extensive with Mahomedan Law of pre emption.
Finally, the trial court held that the vendors and the vendee were not governed by the custom, as they did not live in Benaras.
In this view of the matter, the suit was dismissed with costs.
The respondent then went in appeal, and his contention, in one of the grounds of appeal, was that as the custom of pre emption was held by the trial court to have been proved (and it was co extensive with Mahomedan Law), the custom would bind Hindus also.
It was further contended that the fact that the vendors and the vendee did not live in Benaras made no difference and they would be bound by the custom prevailing in the locality in which the property was situate.
Two main questions thus arose before the first appellate court, namely (i) whether the custom as proved bound Hindus also, and (ii) whether the fact that the vendors and the vendee did not live in Benaras exempted them from being governed by the custom.
On the question of custom, the first appellate court observed that the custom in question had been proved to exist in the locality and was co extensive with Mahomedan Law of pre emption and that this finding had not been challenged before it.
On the second question, the first appellate court held that the fact that the vendors and the vendee did not reside in Benaras made no difference to the application of the custom to them with respect to the property transferred.
The question whether Parjoti lands could be subjected to pre emption was not decided by the trial court, for it dismissed the suit on the ground that the vendors and the vendee not being residents in Benaras, were not bound by the custom.
The first appellate court having found that the vendors and the vendee were so bound went into the question whether lease hold property could be preempted.
It held that the property was heritable and transferable and though the vendors were lessees and paid some groundrent they were for all intents and purposes owners and therefore the land was pre emptible.
It therefore allowed the appeal and granted a decree for 'pre emption.
557 Then followed a second appeal to the High Court by the vendee and two main questions were raised there, namely (i) that the custom of pre emption could not prevail against the vendors and the vendee as they were not residents of Benaras and (ii) that in any case it did not extend to lease hold land or parjoti land.
The High Court held that the custom would bind the vendors and the vendee in this case even though they were not residents of Benaras.
On the question whether the custom prevalent applied to parjoti land or not.
the High Court seems to have read the judgments of the two lower courts as holding that the custom of pre emption even in the case of transfer of parjoti land had been proved.
The High Court therefore dismissed the appeal.
The vendee 's heir then obtained special leave from this Court; and that is how the matter has come before us.
A number of questions has been raised on behalf of the appellant, but it is unnecessary to go into all of them.
The main point that has been urged on his behalf is that the High Court had misread the judgments of the two courts below when it held that they had found that the custom of pre emption existed even with respect to transfer of parjoti land in the city of Benaras.
It is argued that all that the two lower courts have held is that the custom of pre emption co extensive with Mahomedan Law existed in the city of Benaras, and the first appellate court had further held that such a custom bound even Hindus, whether they were residents in Benaras or not.
We are of opinion that this contention is well founded.
We have already referred to the findings of the two lower courts.
The finding of the trial court is clear and is expressed in these words: "I hold that there is a custom of pre emption co extensive with Mahomedan Law.
" The first appellate court endorsed this finding in these words "The trial court found that the custom in question existed in the locality and was co extensive with Mahomedan Law of pre emption and the finding is not challenged in appeal.
" Further in the grounds of appeal by the respondent, one of the grounds was in these terms: "Because when the lower court has held that the custom of pre emption as obtaining in Benaras is co extensive with Mahomedan Law which embraces the zimmees the lower court has erred in holding that the plaintiff could not enforce his right of pre emption against the defendants.
" It is thus clear that all that was found by the two Iower courts was that there was a custom of pre emption prevailing in the city of Benaras which was co extensive with Mohomed Law and 558 which bound Hindus also whether they were residents there or not, so long as the property to be preempted was in the city of Benaras.
It is true that the first appellate court held that the custom applied to lease hold land also because it was of opinion that the ' holder of parjoti land was for all intents and purposes the owner.
But that does not mean that the two courts had found that the ,custom as such related to parjoti land.
The custom that was pre vailing was co extensive with Mahomedan Law; whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law.
The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre emption seems to have held that though there was some ground rent payable, the holder of parjoti land was for all intents and purposes the owner.
The High Court was therefore not right in saying that it had been found by the two courts below that the custom of preemption prevailing in the city of Benaras applied even to transfer of parjoti land.
All that the two courts had found was that the ,custom prevailing in the city of Benaras was co extensive with Mahomedan Law.
This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre emption.
The contention on behalf of the appellant is that Mahomedan Law recognises pre emption only with respect to full proprietary rights and that it does not recognise pre emption with respect to lease hold rights.
We are of opinion that this contention is well founded.
In PrinciPles of Mahomedan Law by D. F. Mulla (15th Edition), the extent ,of pre emption in Mahomedan Law is thus stated at p. 207: "There must be also full ownership in the land preempted, and therefore the right of pre emption does not arise on the sale of a lease hold interest in land.
" This statement of law is supported by a number of decisions to which reference may now be made.
The earliest of these decisions is Baboo Ram Golam Singh vs Nursing Sahoy & others(1).
In that case, mokureree land was sold and the owner wanted to pre empt the sale.
The court held, that the mokurereedar did not stand in the same position as the malik and the law of pre emption only applied to the sale of land of a malik i.e., proprietor.
Therefore there could be no pre emption where the sale was of only mokureree rights which were permanent lease hold rights.
The next case to which reference may be made is Phul Mohammad Khan vs Quazi Kutubuddin(2).
In that case the Patna Court held that Mahomedan Law of pre emption did not (1) (1875) XXV Weekly Reporter (Sutherland) 43.
(2) I.L.R. [1937] 16 Pat.
559 apply to preempting Mukarrari and raivati rights, the sale of such .interests being not of full proprietary interest.
The next case to which reference may be made is Dashrathlal Chhaganlal vs Bai Dhondubai(1).
There also the right of preemption arose by custom and was co extensive with Mahomedan Law.
The property sold in that case was a plot of land with two rooms on it in which the vendors had transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held.
The High Court held that Mahomedan Law of pre emption with which the custom of pre emption was co extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which the custom was claimed must be freehold and the land, sought to be preempted must also be freehold.
It did not arise on the sale of leasehold interests in land.
The next case to which reference may be made is Rameshwar Lal Marwari vs Pandit Ramdeo Jha(2).
In that case rayati land had been sold and a suit was brought to pre empt that sale.
The Patna High Court held that there could be no pre emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre emption might be sought under Mahomedan Law.
These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre emption applies only to sales where they are of full ownership and pre emptors must also base their claim on similar full ownership whether pre emption is claimed on ground of co sharership, vicinage or participation in amenities and appendages.
Learned counsel for the respondent relied on Bhagwati Prasad vs Balgobind(3) for the proposition that there could be pre emption of leasehold interest also for that was a case of lease.
Pre emption there was claimed not under Mahomedan Law but under the Oudh Laws Act.
That case therefore does not help the respondent.
The law in our opinion is quite clear and it is that under the Mahomedan Law of pre emption there must be full ownership in the land preempted and therefore the right of pre emption does not arise on the sale of leasehold, interest in land.
It may be added that the pre emptor also must have full ownership in order to maintain a suit for pre emption, for reciprocity is the basis of Mahomedan Law of pre emption.
In this view of the matter, as the custom which was found proved was co extensive with Mahomedan Law there can be no pre emption of the land which had been sold by the impugned sale deed because the land was parjoti land i.e. leasehold.
We may in this connection refer to Oudh Behari Singh vs Gajadhar (1) I.L.R. (3) A.I.R. 1933 Oudh 161.
(2) A.I.R. 1957 Pat.
560 Jaipuriya(1).
That was also a case of pre emption relating to this very mohalla in the city of Benaras, and the land Pre empted was parjoti land ie.
leasehold It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessee 's right could not be a subject of pre emption.
The learned Judges pointed out in that case that no case had been brought to their notice in which lessee 's rights were held pre emptible under Mahomedan Law.
As the property sold was leasehold land it was not open to the respondent to pre empt it under a custom which was co extensive with Mahomedan Law whatever might be the ground on which pre emption was claimed.
We therefore allow the appeal, set aside the decree of the High Court and of the first appellate court and dismiss the suit.
The appellant will get his costs throughout from the respondent, Bishwanath Prasad.
R.K.P,S. Appeal allowed.
(1) A.I.R. 1955 All.

Output:
The respondent brought a suit for pre emption of certain leasehold (Parjoti) land in Benaras which was sold under a sale deed in February, 1942.
He claimed that there was a custom pre emption in the whole of the city of Benaras, that he was the owner of a house and land adjacent to the property sold, that he was entitled to preempt as a shaft i jar (pre emptor by right of vicinage) and also as a shafi i khalit (pre emptor by right of appendages), and that the necessary talabs had been performed.
The Trial Court held that there was a custom of pre emption in the locality which was co extensive with Mahomedan Law of preemption, that the respondent was the owner of a contiguous house and therefore entitled to sue, and had performed the necessary talabs but that the vendors and the vendee were not governed by the custom as they did not live in Benaras.
The first appellate court in appeal took the view that the fact that the vendors and the vendee did not reside, in Benaras made no difference to the application of the custom to them; it also examined the question whether lease ' hold property could be preempted and held that though the vendors were lessees and paid some ground rent, they were for all intents and purposes owners and therefore the land was pre emptible.
It therefore allowed the appeal and granted a decree for pre emption.
In second appeal the High Court confirmed the view that the custom would bind the vendors and the vendee even though they did not reside in Benaras and further held that the custom of preemption even in the case of transfer of parjoti land had been proved.
It therefore dismissed the appeal.
In the appeal to this Court it was contended inter alia (i) that the High Court had mis read the judgment of the Courts below when it held that they had found the custom of pre emption existed even with respect to transfer of parjoti land in the city of Benaras and (ii) that Mabomedan Law recognises pre emption only with respect to full proprietary rights and does not recognise pre emption with respect to lease hold rights: as the custom in Benaras which was found proved was co extensive with Mahomedan Law, there could be no pre emption of the land which had been sold by the impugned sale deed because the land was parjoti land.
HELD: As the property sold was lease hold land, it was not open to the respondent to pre empt it under a custom which was coextensive with Mahomedan Law whatever might be the ground on which pre emption was claimed.
[560 B C] (i) The High Court was not right in saying that it had been found by the courts below that the custom of pre emption prevailing in the city of Benaras applied even to transfer of parjoti land.
All 555 that the two courts had found was that the custom prevailing in the city of Benaras was co extensive with Mahomedan Law.
[558C D] (ii) It is well established that under the Mahomedan Law of pre emption there must be full ownership in the land preempted and therefore the right of pre emption does not arise on the sale of leasehold interest in land.
Furthermore, the pre emptor also must have full ownership in order to maintain a suit for pre emption, for reciprocity is the basis of Mahomedan Law of pre emption, [559G] Baboo Ram Golam Singh vs Nursing Sahoy & others, (1875) XXV Weekly Reporter (Sutherland) 43; Phul Mohammad Khan vs Quazi Kutubuddin, I.L.R. [1937] 16 Pat.
519; Dashrathlal Chhaganlal vs Bai Dhondubai, I.L.R. [1941] Bombay 460; Rameshwar Lal Marwari vs Pandit Ramdeo, A.I.R. 1957.Patna, 695, and Oudh Behari Singh vs Gajadhar Jaipuriya, A.I.R. 1955 All. 698; referred to.
Bhagwati Prasad vs Balgobind, A.I.R. 1933 Oudh 161; distinguished.


Input:
ivil Appeal No. 1020 of 1975.
(Appeal by Special Leave from the Judgment and Order dated the 18 4 1975 of the Maharashtra State Co op.
Appel late Court in Appeal No. 54 of 1975.) J. L. Nain, U. R. Lalit, and V. N. Ganpure, for the appel lant.
V.M. Tarkunde, Sharad Manohar, P.H. Parekh and Miss Manju Jetley, for respondent No. 1.
M.C. Bhandare, Mrs. section Bhandare, N.S. Narasimhan, K.C. Sharma, ,A. K. Mathur and ,4.
K. Sharma, for respondent No. 2. 343 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment dated 18 April 1975 of the Maharashtra State Co operative Appellate Court.
The question for consideration in this appeal is whether a mortgagor can exercise his right of redemption after a mortgagee under an English Mortgage with power to sell mortgaged property without the intervention of the court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction.
The appellant is the auction purchaser.
The respondents are Flora Co operative Housing Society in liquidation the mortgagors (hereinafter referred to as the Society) and the Maharashtra Co operative Housing Finance Society Ltd., the mortgagee (hereinafter referred to as the mortgagee).
In 1964 the Society was registered as a Housing Society with 12 members.
The paid up capital of the Society was Rs.21,000/ .
The Society wanted 12 flats to be constructed in one structure of ground and two upper floors.
The Society purchased plot No. 153 in Santa Cruz at Bombay, measuring 1002 sq. yards.
The price was Rs.1,02,000/ .
In 1966 the Society mortgaged the land and the incomplete structure in favour of the mortgagee.
The mort gage was for the sum of Rs.70,000/ .
It was an English mortgage.
In 1968 the mortgagee advanced a further sum of Rs.42,000/ .
In 1966 Fair Deal Builders entered into a contract with Society to build.
The work was stopped.
Thereafter in 1967 the Society entrusted the work to Maharaja Builders.
In 1968 the contract with Maharaja Builders was terminated.
The work was given in 1969 to Kamal Construction Company, who abandoned it in incomplete stage.
On diverse dates between 29 August 1967 and 29 November 1970, notice was given by the mortgagee to the Society for non payment to the mortgagor and to sell the property by public auction.
On 9 March 1971 the Assistant Registrar of Co opera tive Societies, Maharashtra, appointed a Special Liquidator of the Society under section 102 of Maharashtra Co operative Societies Act, 1960.
The Assistant Registrar communicated the order of appointment liquidator to the mortgagee on 22 April 1971.
The order of appointment of a liquidator was published in Maharashtra Government Gazette on 29 April 1971.
The mortgagee advertised through Government auc tioner for public auction of the property.
The public auction was held on 14 April 1971.
The claim was for Rs.1,22,888.22 paise.
The appellant was declared the highest bidder for Rs.1,31,001/ .
The terms of sale inter alia were that 25 per cent was to be paid in advance and the balance in 30 days.
The sum of Rs.33,000/ was paid as 6 1546SCI/76 344 25 per cent advance and the balance purchase price of Rs.98,001/was paid to attorneys of the mortgagee.
The auction purchaser took possession on 17 April 1971.
On 13 August 1971 the Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortga gee for injunction against completing sale.
The Society obtained an ex parte injunction restraining transfer.
On 29 September 1971, the interim injunction was vacated.
Thereafter the Society filed an appeal against the said order before the Appellate Tribunal.
In the meantime the appellant filed a writ petition in the Bombay High Court under Article 227 of the Constitution.
On 16 June 1972 there was an interim order by the High Court in the writ petition.
The Society undertook not to dispose of property until disposal of dispute.
Both par ties were allowed to keep watchmen.
The Society borrowed a sum of Rs.1,31,000/ and paid the same to the mortgagee on 15 October 1972.
On 16 January 1975 the Officer on Special Duty delivered judgment.
He held that the dispute was maintain able under section 91 of the Maharashtra Co operative Socie ties Act.
The Society was held not competent to challenge the auction sale held on 14 April 1971.
It was also held that the validity of auction was not affected.
The mortgagee was held entitled to exercise power of sale as a secured creditor without being affected by the winding up order against the Society.
It was also held that the mortgagee did ' not commit any breach of the statutory provisions of section 69 of the .
The sale was pot vitiated.
It was found that there was no irregularity at the auction and there is no ground for setting aside the sale.
The society was entitled to redeem the proper ty because the conveyance was not complete.
The auction purchaser filed before the Maharashtra State Cooperative Appellate Court an appeal against the said order.
In appeal the plaint was allowed to be amended and prayer for redemption was allowed to be introduced.
On 18 April 1975 the Maharashtra State Cooperative Appellate Court dismissed the appeal and held that the dispute as initiated by the Society fell within the ambit of section 97 of the Maharashtra Cooperative Societies Act.
The Appel late Court further held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was therefore not lost.
It was further held that the auction price was grossly inadequate.
The auction sale was not a sale after a fair competition.
The Mortgage Deed provided inter alia as follows : 345 "it is hereby agreed and declared that it shall be lawful for the mortgagees at any time without any further consent on the part of the mortgagors to sell the said mortgaged premises . .
The aforesaid power shall be deemed to be a power to sell or concur in selling the said mortgaged premises in default of payment of the mortgage money without the intervention of the court within the meaning of section 69 of the .
" Clauses (7), (8) and (33) in the Conditions of Sale may be referred to.
Clause (7) provided as follows.
Upon payment of the balance Of the purchase price, the purchaser shall be enti tled to a conveyance from the vendors.
The vendors shall in the conveyance of the property purchased by purchaser give the usual covenant required of a limited owner against encumbrances.
The vendors shall give no other covenant required of an absolute of full owner.
The vendors shall not be required to procure the consent of the mortgagors or of any other person in the conveyance.
Clause (8) was as follows.
After payment of the balance of the purchase money the purchaser shall be entitled to the rents and profits of the said property.
The vendors as the mortgagees are not in possession of the property and will not do anything to deliver possession of the proper ty to the purchaser.
The vendors as the mortgagees shall not be able to give vacant or symbolic possession of the property to the purchaser.
On payment of the balance of the purchase price the purchaser shall at his own cost be at liberty to take such steps as the purchaser may deem neces sary for obtaining possession of the property from the mortgagors.
Clause (33) provided as follows.
If the mortgagors shall deposit all the amounts due to the vendors as mortga gees in court or pay the same to the vendors or their attor neys between the date of sale and the completion thereof and if as a result thereof the vendors have to reconvey the property to them or if the vendors cannot thus proceed with the sale and the sale is not completed on that account the vendors shall return the said deposit to the purchaser without any interest and/or costs and the vendors as such mortgagees shall not be held liable for any damage.
Counsel for the appellant advanced these contentions.
First, under section 69 of the a mortgagor confers on the mortgagee a power of sale through Court Or without intervention of court.
The power of sale is of the entire legal estate of the mortgagor.
Second, when such a power is conferred it is agency coupled with interest under section 202 of the , the agency cannot be revoked without payment to mortgagee.
Third,if the power is acted upon revocation even on payment cannot nullify acts pursuant to powers.
Reliance was placed on sections 203 and 204 of the .
Fourth, if the act done pursuant to power is that the property is put up for sale and it is knocked down it is an act done by the mortgagee for mortgagor In 346 other words it is as if an act done by the mortgagor.
The, sale pursuant to the power is a subsequent act within the meaning and this subsequent act will extinguish the mortgagor 's right of redemption.
Fifth, in a suit for specific performance by auction pur chaser the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Counsel for the appellant relied on two English deci sions.
These are: Waring (Lord) vs London and Manchester Assurance Co. (1), and Property & Bloodstock Ltd. vs Emer ton(2) in support of the propositions that the mortgagor 's right to redemption would be extinguished when the mortgagee exercised the power of sale and the third party entered into a binding contract to purchase the property.
The English decisions are based on the provisions of the English Law of Property Act.
The provisions create a statu tory power of sale, which gives to a mortgagee power to sell the mortgaged property, and it means that the mortgagee has power to sell out and out by private contract or by auction, and subsequently to complete the conveyance.
The English decisions are that if a mortgagee exercises power under section 100(1)(i) of the Law of Property Act, 1925, to sell the mortgaged property by public auction or by private contract it is binding on the mortgagor before completion unless it is proved that he exercised it in bad faith.
It was said in the Property & Bloodstock case (supra) that the contract for sale by the mortgagees to the pur chaser precludes the mortgagor from his right of redemp tion pending completion even if the property is sold subject to one or more conditions.
The English decision naturally notices distinction between condition precedent and the terms of contracts of sale, namely, conditions dealing with matters of title for carrying out the contract.
The mere fact that the label "condition" happens to be attached to conditions does not preclude its being in the latter catego ry of "condition" or matter of title.
The condition that the sale is subject to the reversioner 's licence being obtained where necessary. is held in the English decision to be commonly regarded as no more than a term of the contract relating to title.
The provisions in the relevant to the purpose of present appeal are sections 54, 60 and 69.
Under section 54 of the , sale is a transfer of ownership in exchange for a price paid or promised or part paid and partpromised.
Such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a rever sion or other intangible thing can be made only by a regis tered instrument.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
An English Mortgage is defined in section 58(e) of the .
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged pro (1) (1935) Chancery 310.
(2) (1968) L.R. Chancery 94.
347 perty absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgagemoney as agreed, the transaction is called an English mortgage.
The Rights and Liabilities of Mortgagor are dealt with in section 60 of the .
It is that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and (c) at the cost of the mortgagor either to re transfer the mortgaged property to him or to such third person as he may direct, or to execute and to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
There is a proviso that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.
The right conferred by section 60 of the Trans fer of Property Act is called a right to redeem.
Therefore, the said section 60 provides for a right of redemption provided that the right has not been extinguished by the act of parties.
Section 69 of the deals with mortgagees ' power of sale.
Under the said section 69(1)(c), a mortgagee has power of sale without the intervention of the Court where power is conferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed, situate within the towns of Calcutta, Madras, Bombay or in any other town or area which the State Government, may, by notification in the official Gazette, specify.
The principal question in this appeal is whether the right to redemption has been extinguished by any act of the parties.
The English decisions are based on the provisions of the Law of Property Act, 1925.
In England sale is ef fected by the contract of sale, and in India an agreement for sale is not a sale or transfer of interest.
In England, a mortgagee gets an equitable interest in the property.
Under the English doctrine a contract of sale transfers an equitable estate to the purchaser.
The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee.
In India there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India, there is no distinction between legal and equitable estates.
The law of India knows nothing of that distinction between legal and equitable property in the sense in which it was under stood when equity was administered by the Court of Chan cery in England.
Under the Indian law, there can be but one owner that is, the legal owner.
See Rani Chhatra Kumari vs Mohan Bikram (1) (1) (1931) 58 I.A. 279.
348 A contract of sale does not of itself create any inter est in, or charge on, the property.
This is expressly declared in section 54 of the .
See Rambaran Prasad vs Ram Mohit Hazra(1) & Ors.
C) The fidu ciary character of the personal obligation created by a contract for sale is recognised in section 3 of the and in section 91 of the Trusts Act.
The personal obligation created by a contract of sale is de scribed in section 40 of the as an obligation arising out of contract and annexed to the owner ship of property, but not amounting to, an interest or easement therein.
In India, the word "transfer" is defined with reference to the word "convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in land.
Section 205 of the Law of Property Act in England defines: "Conveyance" includes a mortgage, charge, lease, assent, vesting declaration, vesting instru ment.
The word "conveys" in section 5 of the transfer of Property Act is used in the wider sense of conveying owner ship.
The right of redemption which is embodied in section 60 of the is available to the Mortga gor unless it has been extinguished by the Act of parties.
The combined effect of section 54 of the Transfer of Proper ty Act and section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and registration of transfer of the mortgagor 's interest by registered instru ment that the mortgagor 's right of redemption will be extin guished.
The conferment of power to sell without interven tion of the Court in a Mortgage Deed by itself will not deprive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemption is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
The mortgagor 's right to redeem will survive until there has been completion of sale by the mortagee by a registered deed.
In England a sale of property takes place by agreement but it is not so in our country.
The power to sell shall not be exercised unless and until notice in writing requir ing payment of the principal money has been served on the mortgagor.
Further section 69(3) of the Transfer of Proper ty Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale.
Therefore, until the sale is complete by registration the mortgagor does not lose right of redemp tion.
It is erroneous to suggest that the mortgagee is acting as the agent of the mortgagor in selling the property.
The mortgagor exercises his right under a different claim.
The mortgagee 's right is different from, (1) ; 349 the mortgagor 'section The mortgagee exercises his right under a totally superior claim which is not under the mortgagor, but against him.
In other words, the sale is against the mort gagor 's wishes.
Rights and interests of the mortgagor and the mortgagee in regard to sale are conflicting.
In view of the fact that only on execution of convey ance, ownership passes from one party to another it cannot be held that the mortgagor lost the right of redemption just because the property was put to auction.
The mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act.
The decision in Abraham Ezra Issac Mansoor vs Abdul Latiff Usman(1) is correct law that the right to redeem a mortgage given to a mortgagor under section 60 of the , is not extinguished by a contract of sale of the mortgaged property entered into by a mortga gee in exercise of the power of sale given to him under the mortgage deed.
Until the.
sale is completed by a registered instrument, the mortgagor can redeem the mortgage on payment of the requisite amount.
The Madras decision reported in Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.(2) on which counsel for the appellant relied is contrary to the view expressed in Ellappa Naiker and others vs Sivasubramania Maniagaran,(3) and the aforesaid Bombay decision.
We are entirely in agreement with the Bombay decision.
The Madras decision Meenakshi Velu & Ors.
vs Kasturi Sakun thala & Ors.
(2) which holds a contrary view on which coun sel for the appellant relied is wrong.
For the foregoing reasons, the appeal is dismissed with costs to respondent no 1.
P.H.P. Appeal dismissed.
(1)I.L,R, (2) 1.1 .R, (1967) 3 Madras 161.
(3) (1936) 71 Madras Iaw Journal 607.

Output:
In 1964, respondent No. 1 Society was registered as a Housing Society.
The Society wanted 12 plots to be con structed for its 12 members.
The Society, therefore, pur chased a plot of land.
In 1966, the Society mortgaged the land and the incomplete structure in favour of respondent No. 2.
In March, 1971, the Special Liquidator of the Socie ty was appointed under section 102 of the Maharashtra Co operative Societies Act, 1960.
The mortgagee after demand ing the dues from the mortgagor advertised the public auc tion for the sale of the property.
In the auction sale the appellant was declared as the highest bidder.
The auction purchaser took the possession of the land and the incomplete structure.
Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortgagee praying for an injunction against the completion of the sale.
The Society in the meanwhile paid the mortgage money to the mortgagee.
The Officer on Special Duty delivered his judg ment in January 1975 and held that the Society was entitled to redeem the property because the conveyance was not com plete.
The appellant filed an appeal before the Maharashtra State Co operative Appellate Court.
In the appeal, plaint was allowed to be amended and a prayer for redemption was allowed to be introduced.
The appellate Court held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was, therefore, not lost and that the auction price was grossly inadequate and that the sale was not after a fair competition.
One of the conditions of auction sale was that if the mortgagor deposited the mortgage money in court between the date of the sale and completion thereof and if as a result thereof the mortgagee was to reconvey the property to the mortgagor the auction purchaser Would be entitled to the refund of the amount paid without any inter est and/or cost.
In an appeal by Special Leave the appellant contended: (1) When under section 69 of the a mortgagor confers on the mortgagee a power of sale through court or without intervention of court, the power of sale extends to the entire legal estate of the mortgagor.
(2) When such a power is conferred it is agency coupled with interest under section 202 of the .
If the power is acted upon revocation even on payment of mortgage money cannot nullify acts already done pursuant to the said powers.
(3) Knocking down at an auction sale by the mortgagee pursuant.
to the power of sale extinguishes the mortgagor 's right of redemption.
(4) In a suit for specific performance by auction pur chaser, the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Dismissing the appeal, 342 HELD: (1) Under section 69(1)(c) a mortgagee has power to sell without intervention of the court where power is con ferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed situated in certain big towns.
[347D E] (2) In India the word "transfer" is defined with refer ence to the word ,"convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in the,land.
Section 205 of the Law of Property Act in England defines "conveyance as including mortgage, charge, lease, assent vesting declara tion, vesting instrument".
The word "conveys" in section 5 of the and section 17 of the Indian Registration Act is that contract for sale in respect of immovable property of the value of more than Rs.100 without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and regis tration of transfer of the mortgagor 's interest by regis tered instrument that mortgagors right of redemption will be extinguished.
The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not derrive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemp tion is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
[348B, D E] Abraham Ezra Issac Mansoor vs Abdul Latif Usman I.L.R. 1944 Bombay 549, approved.
Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.
I.L.R. , overruled.
Ellappa Naiker and Ors.
vs Sivasubramania Manisaran , approved.
(3) Under the English doctrine, a contract of sale transfers an equitable estate to the purchaser.
In India there is no equity or right in property accrued is favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India there is no distinction be tween legal and equitable estates.
In India there can be but one owner i.e. legal owner.
[347G H] Rani Chhotra Kumari vs Mohan Bikram (1931) 58 I.A. 279 and Rambaran Prasad vs Ram Mohit Hazra & Ors.
(1967) I SCR 293, followed.
(4) Under section 100(1)(i) of the Law of Property Act, 1925, if a mortgagee exercises power to sell the mortgaged proper ty by public auction or by private contract it is binding on the mortgagor before completion of the sale unless it is proved that the power was exercised in bad faith.
The English decisions are based on the said provision of the English Law of Property ,Act and, therefore, they are not applicable to India.
[346 B D] Waring (Lord) vs London and Manchester Assurance Co. (1935) Chancery 310 and Property & Bloodstock Ltd. vs Emer ton (1968) L.R. Chancery 94 distinguished.


Input:
ivil Appeal Nos.
4 132 4 133 (NCE) of 1986.
From the Judgment and order dated 22.10.1986 of the Rajas : than High Court in S.B. Election Petition Nos. 1 and 9 of 1985.
N.M. Ghatate, B.R. Dutta and S.V. Deshpande for the Appellant.
Dr. Y.S. Chitale, M.R. Calla and Jitendra Sharma for the Respondents.
The Judgment of the Court was delivered by SINGH,J.
These two appeals under Section 116 A of the Rep resentation of the People Act, 1951 (hereinafter referred to as the Act) are directed against the judgment and order of the High Court of Rajasthan at Jaipur dated 22nd October 1986 setting aside the appellant 's election to the Legislative Assembly of the State of Rajasthan.
Election to the Rajasthan Legislative Assembly Constituency No. (80 Karauli) was held in 1985.
The appellant and 10 other candidates contested the election from the aforesaid assembly constituency.
The Returning officer declared the appellant duly elected on his having obtained majority of valid votes.
Chandra Bhan Singh, Respondent No. 1, filed Election Petition No. 1 of 1985 as an elector and another Election Petition No. 9 of 1985 was filed by Mukand Ram, Respondent No. 2, also an elector before the High Court of Rajasthan under Section 80 of the Act, challenging the validity of the appellant 's election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning officer which materially affected the result of the election of the returned candidate.
The appellant appeared and contested both the election petitions? and pleaded before the High Court the Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper.
He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya 717 Lal 's nomination paper.
Both the election petitions were consolidated and tried jointly by the High Court.
The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of their cases before the High Court.
The High Court by its order dated 22nd October, 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning officer.
The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes, the result of the election was materially affected.
On these findings the High Court declared the appellant 's election void and directed the Election Commission to hold fresh election.
Learned counsel for the appellant raised only one submission before us in challenging the correctness of the order of the High Court.
He urged that the finding recorded by the High Court that the improper acceptance of the nomination paper of Kanhaiya Lal had materially affected the result of appellant 's election was based on conjectures and surmises and not on any legal evidence.
Learned counsel further submitted that none of the two election petitioners had produced any cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of Kanhaiya Lal but on the other hand the appellant had produced large number of witnesses in support of his case, but the High Court had failed to consider the evidence of those witnesses.
Dr. Chitale appearing on behalf of the Respondents urged that on the material on record and having regard to the number of votes polled by Kanhaiya Lal and the difference between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal the findings recorded by the High Court are sustainable in law and the same are in accordance with the law laid down by this Court in Chhedi Ram vs Jhilmit Ram & others.
; , In all eleven candidates contested the election.
After counting, it was found that the total number of votes polled were 60815 out of which 821 votes were rejected being invalid by the Returning officer.
Thus the total number of valid votes were 59994.
The total valid.
number of votes polled by each of the candidates was as under: H 718 1.
Shiv Charan Singh (appellant) 21443 2.
Kanhaiya Lal.
17341 3.
Asphak.
275 4.
Narayan.
1310 5.
Prahlad 252 6.
Puran Chandra Sharma.
1308 7.
Mana Lal 198 8.
Ram Swaroop.
102 9.
Roshan Lal.
16946 10.
Samanta.
271 11.
Heera Lal 40 The High Court has held that Kanhaiya Lal 's nomination paper was improperly accepted, as he was not competent to contest the election for the reason of his being below 25 years of age.
Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates, as a result of which Roshan Lal would have polled the majority of valid votes.
In this view the High Court concluded that the result of the appellant 's election was materially affected and it accordingly declared the appellant 's election void.
Since the learned counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age and his nomination paper was improperly accepted by the Returning officer the said finding must be accepted as correct.
The only question which survives for consideration is whether improper acceptance of Kanhaiya Lal 's nomination paper materially affected the result of the appellant 's election.
Section 100 confers power on the High Court to declare the election of the returned candidate void if the grounds set out therein are made out.
Section 100 (1) relevant for our purpose is as under: "100.
Grounds for declaring election to be void. (1) Subject to the provisions of sub section (2) if the High Court is of opinion.
(a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Govern 719 ment of Union Territories Act, 1963 (20 of 1963)or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
the High Court shall declare the election of the returned candidate to be void.
" Section 100(1)(d)(i) provides for setting aside the election of the returned candidate on the ground of improper acceptance of any nomination paper provided the result of the election of the returned candidate is materially affected by reason of such improper acceptance of nomination of a candidate other than the returned candidate.
Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election of the returned candidate void.
The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance.
The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate.
Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void.
720 The question as to how and in what manner the burden of Providing that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases.
In the leading case of Vashist Narain Sharma vs Dev Chandra and others; , this Court considered this question at length.
In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted.
The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes.
There was thus difference of 1864 votes bet ween the votes polled by the returned candidate and the next unsuccessful candidate.
The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election.
This Court set aside the order of the Tribunal on the ground that the election petitioner had failed to discharge the burden of proving that the result of the election had been materially affected.
The Court observed as under: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes bet ween the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(l)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" Section 100 (l)(c) of the Act as it stood in 1952 was in pari materia with the present Section 100(l)(d)(1) of the Act.
The 721 interpretation of Section 100 (1)(c) of the Act as given by the Court in Vashist Narain Sharma 's, case fully applies to the interpretation of Section 100(1)(d)(1) of the Act.
In Vashist Narain Sharma 's, case this Court has categorically held that the result of the election of the returned candidate cannot be materially affected merely for the reason that the number of votes polled by the candidate whose nomination paper was improperly accepted was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes, because it could not be predicated in what manner or proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest.
Proceeding further the Court considered the question whether any speculation, or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes.
The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field.
Since it was not possible to anticipate the result, the election petitioner must discharge the burden of proving that fact, and on his failure to prove that fact the election of the returned candidate must be allowed to stand.
Then the question arose as to how and in what manner the burden could be discharged by the election petitioner.
On behalf of election petitioner an attempt had been made to discharge burden by producing a number of electors before the Tribunal who had stated that all or some of the votes would have gone to the candidate who had polled the next highest number of votes in the absence of the improperly nominated candidate and he would have polled majority of valid votes.
The Court held that the statement of the witnesses as to in what manner votes would have been distributed among the remaining contesting candidates could not be relied upon in determining the question of material effect on the election of the returned candidate.
The Court observed: "It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.
The question is one of fact and has to be proved by positive evidence.
If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must 722 stand.
Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law.
How this state of things can be remedied is a matter entirely for the Legislature to consider.
(Underlining by us) Tn Paokai Haokip vs Rishang Ors.
, ; the Judicial Commissioner Manipur had set aside the election of the returned candidate to Lok Sabha on the ground that there was gross violation of the Act and the Rules framed thereunder in conducting the election as a result of which the result of the election was materially affected under Section 100(1)(d)(iv) of the Act on the findings that on the polling date a number of polling centres were changed without notice to voters and there was firing and riots at some polling stations, as a result of which a number of voters could not exercise their right to vote.
In rendering the aforesaid findings the Judicial Commissioner had placed reliance upon the statement of witnesses who had testified before the Tribunal that if they had opportunity to cast their votes, they would have voted for the unsuccessful candidate.
This Court, placing reliance on the decision in Vashist Narain Sharma 's case held that the statement of witnesses could not be taken at their word and it was a surmise and anybody 's guess as to how those people, who did not vote, would have actually voted.
Then the question arose if witnesses could not be relied upon, in what manner the election petitioner, could discharge the burden.
Referring to the decision in Vashist Narain Sharma 's case the Court observed as under: "How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided.
It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it.
It is for the Legislature to consider whether it should be altered.
If there is another way of determining the burden, the law should say it and not the courts.
It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not.
We are satisfied that in this case this burden has not been discharged." (Underlining by us) 723 We are in respectful agreement with the view taken by this Court in the aforesaid decisions.
The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate.
The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes.
In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes.
In the absence of any such proof the result cannot be held to have been materially affected.
The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof.
But the difficulty in proving this fact does not alter the position of law.
The legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void.
The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma 's and Paokai Haokip 's, cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts.
Since then the Act has been amended several times, but Parliament has not, altered the burden of proof placed on the election petitioner under Section 100(1)(d) of the Act.
Therefore the law laid in the aforesaid decisions still hold the field.
It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates.
Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question.
In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.
In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number 724 Of votes.
There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal.
Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17841 votes which were wasted.
The election petitioners did not produce any evidence e to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate.
On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency.
All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant.
The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court 's decision in Vashist Narain Sharma 's, case.
The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected.
The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose nomination was improperly accepted had secured 17841 votes therefore it could reasonably be concluded that the election was materially affected.
In our opinion the High Court committed error declaring the appellant 's election void on speculations and conjectures.
Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal.
In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected.
The High Court 's findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence.
The Legislature has, as noted earlier placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma 's and in Paokai Haokip 's case.
It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge.
But in spite of the fact that this Court had highlighted this question on more than one occasion, Parliament has not amended the relevant provisions although the Act has been 725 subjected to several amendments.
It is manifest that law laid down by this Court in Vashist Narain Sharma 's case and Paokai Haokip 's case holds the field and it is not permissible to set aside the election of a returned candidate under Section 100(1)(d) on mere surmises and conjectures.
If the improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes.
The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate.
Any speculation made by the Court in the this respect would be arbitrary and contrary to the democratic principles.
It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations.
Many times electors cast their vote on consideration of friendship, party affiliation, local affiliation, caste, religion, personal relationship and many other imponderable considerations.
Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate.
No inference on the basis of circumstances can successfully be drawn.
While in a suit of proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings, it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters, who may have voted for the improperly nominated candidate.
In the instant case there were 11 contesting candidates.
If Kanaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates.
There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanaiya Lal may not have gone to exercise their vote in favour of the remaining candidates.
It is probable that in the absence of Kanaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate.
It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal.
It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates.
In this view, the result of the returned candidate could not be declared void on the basis 726 of surmises and conjectures.
The High Court placed reliance on the decision of this Court in Chhedi Ram 's case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal.
The decision in Chhedi Ram 's case does not over rule earlier decisions of this Court in Vashist Narain Sharma and Paokai Haokip 's case and it does not lay down any different law.
Instead the decision of the case turned upon the facts of that case.
In Chhedi Ram 's case there were four contesting candidates.
Jhilmit Ram the returned candidate had polled 17822 votes while Chhedi Ram had polled the next highest number of votes being 17449 votes.
Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only.
While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes.
The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram.
This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved.
After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes i.e. almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, in that situation the result of the election was held to have been materially affected.
The decision in Chhedi Ram 's case rests on its own facts.
Applying the principle laid down in Chhedi Ram 's case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected.
As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times, while 727 the difference in Chhedi Ram 's case was 20 times.
Further in Chhedi Ram 's case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes.
On these facts even on the basis of Chhedi Ram 's case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant 's election.
In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law.
In the result, we hold that the election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper of Kanaiya Lal.
Therefore, the election of the returned candidate could not be declared void.
We accordingly allow the appeals, set aside the judgment and order of the High Court, uphold the appellant 's election and dismiss the election petitions with costs throughout.
N.P.V. Appeals allowed.

Output:
% The validity of the appellant 's election to the Legislative Assembly was challenged by two electors, Respondent Nos. 1 and 2, on the ground that improper acceptance by the Returning officer, of the nomination paper of one of the contesting candidates who was not qualified to contest the election under article 173(b) of the Constitution, had materially affected the result of the election of the returned candidate.
The appellant contested the election petitions, contending that there was no improper acceptance of nomination paper of the candidate in question and that the appellant 's election was not materially affected.
The High Court held that there was improper acceptance of the nomination paper, as the candidate in question was not competent to contest election for the reason that he was below 25 years of age.
It also held that the election of the appellant was materially affected, because there was a difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate and if the candidate whose nomination paper had been improperly accepted had not contested, the votes polled by him would have gone in favour of the next unsuccessful candidate and other candidates, in which case the next unsuccessful candidate could have polled the majority of valid votes.
It accordingly declared the appellant 's election void.
In the appeals before this Court it was contended on behalf of the appellant that the finding recorded by the High Court that the improper acceptance of the nomination paper of the candidate in question had materially affected the result of the appellant 's election was based on conjectures and surmises and not on any legal evidence and that none of 714 the two election petitioners had produced by cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of the candidate in question.
On behalf of the respondents, it was urged that on the material on record and having regard to the number of votes polled by the candidate whose nomination was improperly accepted and the difference between the votes polled by the appellant and the next unsuccessful candidate, the findings recorded by the High Court were sustainable in law and the same were in accordance with the law laid down by this Court.
in Chhedi Ram vs Jhilmit Ram & ors.
, [ ; Allowing the appeals, ^ HELD: l.
The election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper.
Therefore, the election of the returned candidate could not be declared void.
[717C D] 2.1 Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election.
Of the returned candidate void.
The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance.
The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate.
Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void.
[719F H] 2.2 The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidates (other than the returned candidate) would have polled the highest number of valid votes.
In the absence of any such proof, the result cannot be held to have been materially affected.
[732C D] The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof.
But the difficulty in proving this fact does not alter the position of law.
The 715 legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void.
[719G H] 2.3 It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates.
[723F] Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question.
In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.
[723F G] Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate.
No inference on the basis of circumstances can successfully be drawn.
[725D El The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate.
Any speculation made by the Court in this respect would be arbitrary and contrary to the democratic principles.
[725B C] In the instant case, the election petitioners had failed to discharge the burden of proving the fact that the result of the election of the appellant had been materially by reason of improper acceptance of the nomination paper of the candidate in question.
In the absence of any positive evidence provided by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected.
There were ll contesting candidates.
If the candidate whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates.
Therefore, the result of the returned candidate could not be declared void on the basis of surmises and conjectures.
[724E; 725E H] Vashist Narain Sharma vs Dev Chandra and others; , and Paokai Haokip vs Rishang & Ors., ; , relied on.
716 Chhedi Ram vs Jhilmit Ram 2 others, [1984] t SCR 966 distinguished and explained.