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vil Appeal Nos. 1553 to 1556 of 198 1 etc.
From the Judgment and Order dated 20.3.1981 of the Kerala High Court in W.P. Nos. 166, 177,223 and 243 of 1980.
T.S. Krishnamurthy Iyer, G.L. Sanghi M.M. Abdul Khader, M.K. Ramamurthi, G. Vishwanatha Iyer, Ms. Shanta Vasudeavan, A.S. Nambiar, K.M.K. Nair, E.M.S. Anam, V.J. Francis, O.V. Radhakrishnan and N. Sudhakaran, for the appearing parties.
The Judgment of the Court was delivered by PATHAK, CJ.
These appeals by graduate Excise Inspectors are directed against the judgment and order dated 20 March, 1981 of the High Court of Kerala holding that the amendment to Special Rule 2 of the Kerala Excise & Prohibition Subor dinate Service Rules is ultra vires.
The writ petitions were filed by non graduate Excise Inspectors alleging that the amendment to Special Rule 2 of the aforesaid Rules violates Articles 14 and 16 of the Constitution inasmuch as an invidious discrimination has been made between graduates and non graduates by prescribing a ratio between them in the matter of promotion from the post of Excise Preventive Officer to that of Second Grade Excise Inspectors.
As all the cases have proceeded on a common factual basis, we shall take up the appeal arising out of O.P. 3760 of 1978 for the purpose of this judgment.
The petitioner in O.P. 3760 of 1978 joined the post of Excise Guard on 2 April, 1960.
He was promoted on 12 Janu ary, 1966 as Excise Preventive Officer.
In the list of Preventive Officers in the 204 Excise Department as on 1 August, 1970 he was ranked No. 131 while the third respondent was ranked at number 390.
The third respondent was promoted earlier although he was junior to the petitioner.
This was on the ground that he was a graduate and the petitioner was a non graduate.
The peti tioner contended that as graduates and non graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors no differentiation should have been made between them when prescribing a rule of quota for promotion.
The writ petition was heard by a learned Single Judge, who held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution.
It may be noted that the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service was amended by G.O.P.No.
79/78/TD dated 23 June, 1978 whereby the ratio 1:3 between graduate and non gradu ates was introduced into the Special Rules in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors.
The amendment was deemed to have come into force retrospectively from 9 Sep tember, 1974 when the Special Rules were brought in.
The learned Single Judge directed the respondents in the case to cause the Departmental Promotion Committee to be convened within two months to prepare a select list in order that promotions on a regular basis could be made.
Against the judgment of the learned Single Judge in the different cases, appeals were filed before a Division Bench of the High Court.
Two contentions were raised on behalf of the appellants, who in some of the appeals were the State of Kerala and the Deputy Commissioner of Excise, Board of Revenue, Trivandrum and in other cases were a number of private respondents in the original petitions and who held the post of Excise Inspector.
Two contentions were raised by the appellants before the Division Bench of the High Court.
It was contended that the preference shown to graduates by prescribing under the amended special Rule 2 the ratio 1:3 represents the recogni tion of graduation as a standard of merit and, it was urged, officers with more merit in the post of Excise Inspectors would promote administrative efficiency.
It was also con tended that the amendment to Special Rule 2 is the result of an historical background which justifies preferential treat ment.
It was pointed out that as graduates and non graduates had all along been treated differently in the matter of promotion to the post of Excise Inspector, the classifica tion brought about by amending Special Rule 2 could not be regarded as unreasonable.
205 It will be appropriate to set forth the historical background out of which the present controversy arises.
From the year 1935, in the erstwhile State of Travancore prefer ence was given to graduates in the matter of promotion.
When the State of Kerala was constituted by the merger of the Travancore and Cochin areas with effect from 1 November, 1956 a rule was promulgated in the Excise Department of Kerala prescribing a ratio in the matter of promotion to the post of Excise Inspectors by an order dated 23 August, 1957.
The Rule regulated appointments to posts of Guards, Preven tive Officers and Second Grade Inspectors in the Excise Department.
Clause (d) related to Second Grade Excise In spectors and it provided: "(d) Second Grade Excise Inspectors: A margin of twentyfive per cent of the vacancies in the cadre of Second Grade Excise Inspectors will be left for being filled up by direct recruitment by the Public Service Commission of graduates .
The remaining seventy five per cent will be filled up by promoting L.D. Clerks . . and Preventive Officers on a 50:50 basis observing the ratio.
of 3:1 between graduates and non graduates in either case.
" Clause (d) applied to personnel of the Travancore Cochin area.
The officers allotted from Madras were governed by the Madras Rules pending the issue of common rules applicable to both.
By reason of this Order 25 per cent of the post of Second Grade Excise Inspectors were to be filled up by direct recruitment, 37 1/2 per cent by promoting Lower Division Clerks and 37 1/2 per cent by promoting Preventive Officers.
Within the promotion quota of Preventive Officers promotion was to be effected between graduates and non graduates in the ratio of 3: 1.
This rule applied to Travancore and Cochin personnel appointed prior to 1 November, 1956.
After taking note of the situation in different parts of the State, the Government order dated 19th November, 1957 prescribed the ratio of 1:1 between graduates and non graduates on an interim basis.
It was mentioned there that the ultimate aim was to do away with the distinction between graduates and non graduates in offices other than the Secretariat, the Public Service Commission and the High Court.
Subsequently, however, it was clarified on 8 July, 1966 that the Order was intended to apply to ministerial posts only and not to executive posts such as those of Preventive Officers.
The question of the applicability of the graduate and non graduate ratio was examined by the High Court in Writ Petitions filed 206 in 1972, and the High Court directed the Government to look into the matter and finalise the provisional promotion of Excise Inspectors accordingly.
It was thereafter that Spe cial Rules for the Kerala Excise and Prohibition Subordinate Service dated 9 September, 1974 were published.
They provide for appointment to the posts of Excise Inspectors by direct recruitment, promotion from the category of Excise Preven tive Officers and recruitment by transfer from among Upper Division Clerks employed in the Excise Department.
The Rules did not provide for any graduate non graduate ratio in the matter of promotion, apparently because the ratio had al ready been provided earlier by the Government order dated 23 August, 1957.
But meanwhile the High Court held that the Government order dated 23 August, 1957 could not be applied to those appointed after the formation of the State of Kerala.
To fill up the vacuum in respect of appointments after 1 November, 1956 an order dated 4 October, 1974 was made applicable retrospectively to all appointments on or after 1 November, 1956 till the date of issue of the Special Rules for the Excise Subordinate Service.
It adopted the ratio of 3:1 between graduates and non graduate for promo tion to the post of Second Grade Excise Inspectors for the entire State of Kerala, and it specifically provided that this graduate non graduate ratio 3:1 would apply to the case of persons who had entered the Excise Department on or after 1 November, 1956, and that it would operate until the coming into force of the Kerala Excise and Prohibition Subordinate Service Rules.
This was, however, challenged in the High Court and the High Court held that it was not open to the Government to apply the ratio of 3:1 by an executive order passed in 1974 and made retrospectively from 1 November, 1956 inasmuch as an executive order could not be given retrospective effect.
There was, therefore, no provision in law prescribing a graduate non graduate ratio governing appointments made on and from 1 November.
As has been stated Special Rules for the Excise Subordinate Service dated 9 September, 1974 had been published meanwhile.
Spe cial Rule 2 was amended with effect from 9 September, 1974, the date of commencement of the Special Rules, providing for a ratio of 1:3 between graduates and non graduates as from 9 September, 1974.
In consequence.
while up to 9 September, 1974 there was no valid Rule in force applying a graduate non graduate ratio for promotion, there was a rule intro duced in 1978 by amendment to the Special Rules prescribing a ratio from 9 September, 1974 onwards.
The gap between 1 November, 1956 and 9 September, 1974 was sought to be filled thereafter by an Order dated 6 March, 1981 which provided that the appointment of Excise Inspectors during the period from 1 November, 1956 and ending 8 September, 1974 from 207 among Clerks and Preventive Officers who have entered serv ice on or after 1 November, 1956 would be made in the ratio of 1:1 between Clerks and Preventive Officers.
simultaneous ly observing the ratio 01 ' 3: l was observed between gradu ates non graduates. 'The Rule was deemed to have into force from 1 November, 1956.
It will thus be evident that in the case of Preventive Officers appointed on or after 1 November, 1956, the gradu ate non graduate ratio of 3:1 was observed between 1 Novem ber, 1956 and 8 September, 1974, and it became 1:3 from 9 September, 1974 onwards.
The plea of the non graduate Preventive Officers that there should be no preference in favour of the graduate officers was accepted, as we have seen, by the learned Single Judge and upheld in appeal by the Division Bench of the High Court.
In these appeals by graduate Excise Inspectors, it is contended that there was good and substantial reason for maintaining the ratio between graduate and non graduate Officers, and the history of the evolution of the service supported the maintenance of such ratio, and that the High Court proceeded erroneously in assuming that the observance of the ratio between graduates and non graduates produced an invidious discrimination violative of articles 14 and 16 of the Constitution.
We are referred to Mohammad Shujat Ali & Ors.
vs Union of India & Ors. etc.
; , where this Court upheld the differentiation between graduate supervisors and non graduate supervisors for the purpose of promotion as Assistant Engineers.
But it is clear that this was on the ground that the two categories of supervisors had been kept distinct and apart under the Cadre Rules from the beginning, with different pay scales and different treatment for the purpose of promotion.
Reference was also made of State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; , but it was held there that having regard to the object of achieving administrative efficiency in the.
Engineering Service it was a just qualification to maintain a distinction between Assistant Engineers who were degree holders and those who were merely diploma holders.
In S.L. Sachdev & Anr.
vs Union of India & Ors.
, ; again the discrimination between UDCs drawn from Audit Offices and other UDCs in the matter of the eligibility qualification for promotion was justified on the basis that the one enjoyed greater experience and that the distinction based on length of service was directly related to the object of the classification.
In Col. A.S. Iyer and Others vs
V. Balasubramanyam and Others, ; upon which reliance 208 has been placed by the Appellants, the recruits were from two different sources which had not completely fused into one integrated service but were instead allowed to maintain their separate identity, and regard was had to their basic functional character, operational capabilities and 'futuris tic ' uses to support the differential treatment between military engineers and civilian engineers.
H.H. Shri Swamiji of Shri Admar Mutt, etc.
vs The Commissioner, Hindu Reli gious & Charitable Endowments Department & Ors., ; is a case where we find it difficult to see any argument in favour of the appellants, for the passage there in to which our attention has been drawn specifically al ludes to the circumstance that the passing of time results in altering a fact situation which has the consequence of wearing out the basis on which the differentiation is found ed.
So also in Motor General Traders and Anr.
vs State of Andhra Pradesh & Others, ; it was observed by this Court that an exemption provision initially valid could become discriminatory where with the passage of time the nexus with the object did not survive any longer.
We have also heard submissions made by learned counsel for the appellants in Civil Appeals Nos. 1554 and 1556 of 1981, and they have elaborated on the points raised by learned counsel in Civil Appeal No. 1553 of 1981 with some differences of nuance and emphasis.
In essence, the conten tion remains the same.
It seems to us that the history of the evolution of the Kerala Excise and Prohibition Subordinate Service has shown no uniformity either in approach or in object.
The history has varied with the circumstances prevailing before and after the reorganisation of the State on 1 November, 1956.
Originally when more emphasis was laid on the induction of graduate the ratio of graduate to non graduate officers was maintained at 3: 1.
But from 9 September, 1974 the ratio was changed inversely to 1:3.
More non graduates were now in ducted into the Service.
The trend shows, if anything, that it ran in favour of absorbing more non graduates.
The condi tions pertaining to the service, and respecting which the constitution of the service varied from time to time, showed fluctuations.
A consistent or coherent policy in favour of graduates was absent.
This is not a case where the cadre of officers was kept in two separate divisions.
It was a single cadre, and they were all equal members of it.
There is no evidence that graduate Preventive Officers enjoyed higher pay than non graduate Preventive Officers.
The High Court has noted that the nature of the duties of Preventive Offi cers whether graduate or non graduate was identical, and both were put to field work.
Non graduate Preventive 209 Officers were regarded as competent as graduate Preventive Officers.
There is no evidence of any special responsibility being vested in graduate Preventive Officers.
Once they were promoted as Excise Inspectors there was no distinction between graduate and non graduate Excise Inspectors.
In our opinion the learned Single Judge as well as the Division Bench are right in holding that the prescription of a ratio dividing the quota of promotion between graduate Preventive Officers and non graduate Preventive Officers is invalid on the ground that it violates articles 14 and 16 of the Constitution.
The other contention raised before the High Court, namely that the ratio 1:3 between graduates and non gradu ates is supportable on the ground that the recognition of graduation is recognition of merit, and that more merit in the post of Excise Inspectors would be conducive to better administrative efficiency, is shortly disposed of.
Ordinari ly, it is for the Government to decide upon the considera tions which, in its judgment, should underlie a policy to be formulated by it.
But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of articles 14 and 16 of the Constitution.
In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no dis tinction between graduate and non graduate Officers and that for all material purposes they are effectively treated as equivalent.
Accordingly, this contention must also be rejected.
In the result, the appeals fail and are dismissed but there is no order as to costs.
R.S.S. Appeals failed.

Output:
The respondents, who were non graduate Excise Preventive Officers in the Excise Department, had challenged in the High Court the amendment made to the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service whereby the ratio of 1:3 between gradu ates and non graduates was introduced in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors.
They had contended that as graduates and non graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors.
no differentiation should have been made between them when prescribing a rule of quota for promotion.
The learned Single Judge allowed the writ and held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution.
The State of Kerala and the private appellants, who were graduate Excise Preventive Officers and were holding the post of Second Grade Excise Inspectors.
filed appeals.
It was contended by them before the Division Bench that (i) the preference shown to gradu ates in the matter of promotion represented the recognition of graduation as a standard of merit which would promote administrative efficiency, and (ii) the amendment to Special Rule 2 was the result of a historical background which justified preferential treatment.
It was pointed out that as graduates and non graduates had all along been 202 treated differently in the matter of promotion to the post of Excise Inspector, the classification brought about by amending Special Rule 2 could not be regarded as unreasona ble.
The Division Bench held that the amendment to Special Rule 2 of the Kerala Excise & Prohibition Subordinate Serv ice Rules was ultra vires.
Dismissing the appeals, this Court HELD: (1) The history of the evolution of the Kerala Excise and Prohibition Subordinate Service has shown no uniformity either in approach or in object.
The history has varied with the circumstances prevailing before and after the reorganisation of the State.
The conditions pertaining to the service.
and respecting which the constitution of the service varied from time to time, showed fluctuations.
A consistent or coherent policy in favour of graduates was absent.
This is not a case where the cadre of officers was kept in two separate divisions.
It was a single cadre, and they were all equal members of it.
There is no evidence that graduate Preventive Officers enjoyed higher pay than non graduate Preventive Officers.[208E G] Mohammad Shujat All &.
vs Union of India ; and Col. A.S. Iyer vs V. Balasubramanyam, ; , distinguished.
(2) The Conditions of employment and the incidents of serv ice the instant case, recognise no distinction between graduate and non graduate Officers and for all material purposes they are effectively treated as equivalent.
The nature of the duties of Preventive Officers whether graduate or non graduate was identical, and both were put to field work.
Non graduate Preventive Officers were regarded as competent as graduate Preventive Officers.
There is no evidence of any special responsibility being vested in graduate Preventive Officers.
[208H; 209A, E] State of Jammu & Kashmir vs Triloki Nath Khosa, ; ; S.L. Sachdev vs Union of India, [1980] 1 S.C.R. 971, distinguished.
H.H. Shri Swamiji of Shri Admar Mutt vs Commissioner, Hindu Religious & Charitable Endowment Department, ; and Motor General Traders vs State of Andhra Pra desh; , , referred to.
(3) Ordinarily, it is for the Government to decide upon the considerations which, in its judgment, should underlie a policy to be 203 formulated by it.
But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government.
it is always open to the Court to strike down the differentiation as being violative of Arti cles 14 and 16 of the Constitution.
[209D E] (4) The learned Single Judge as well as the Division Bench were right in holding that the prescription of a ratio dividing the quota of promotion between graduate Preventive Officers and non graduate Preventive Officers is invalid on the ground that it violates Articles 14 and 16 of the Con stitution.
[209B C]


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l Appeal No. 1519 of 1968.
Appeal under section 116A of the Representation of the People Act, 1951 from the judgment and order dated May 28, 1968 of the Madras High Court in Election Petition 11 of 1967.
R.M. Seshadri and R. Gopalakrishnan, for the appellant.
section V. Gupte, A. C. Muthanna, S.S. JavaIi, Anjali K. Verma and O.C. Mathur, for respondent No. 1.
G. Ramanujam and A. V. Rangam, for intervener.
C.J., This appeal is directed against the judgment of the High Court of Madras, 28th May 1968, by which the election of the appellant Seshadri has been set aside.
The election in question was to the Madras Legislative Council from the Madras District Graduates Constituency.
That constituency consisted of 19,498 votes and the total votes polled were 12,153.
Since the voting was by a single transferable vote, three 1029 out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second person named by the elector on the ballot.
At the final count the appellant Seshadri received 5643 votes and G. Vasantha Pai (his nearest rival) who is the first respondent in 'the appeal received 5388 votes.
Seshadri was, therefore, elected by a majority of 255 votes.
The election petition was filed by G. Vasantha Pai to question the election of Seshadri on many grounds.
Only one ground prevailed, namely, that he had employed cars which had been hired or procured for the conveyance of the voters to the polling booths which numbered 73 in this constituency.
The other charges were numerous but they need not be mentioned here because in our opinion this charge has been substantiated.
It may be mentioned that Seshadri filed a petition of recrimination but it was dismissed because he failed to furnish security required under the Act.
Later he corrected this mistake but the petition was not accepted because it was held to be delayed.
The learned Judge who ' heard the case held that instead of Seshadri, Vasantha Pai deserved to be declared elected under the law.
In this appeal, therefore, Seshadri contends that the decision in his respect was erroneous and in the alternative that in any event Vasantha Pal could not be declared as the successful candidate.
We shall deal with these two points separately.
It may further be mentioned that in the original order passed by the learned Judge he had not named Seshadri as guilty of corrupt practice.
By a subsequent order he reviewed his previous order and gave a declaration.
This point also will require to be considered in this judgment.
The allegation in the election petition was that a large number of motor cars were hired or procured from various sources for the conveyance of the voters to the polling booths.
These were sometimes occupied by persons wearing badges which bore the name of Seshadri and sometimes were received at the polling booths by persons who wore the same badges.
From this, it is inferred that the motor cars were used for the conveyance of voters by Seshadri as one of the contesting candidates.
Such conduct, if it is established, amounts to a corrupt practice under section 123(5) of the Representation of People Act.
The short question, therefore, on the first point is whether Seshadri was guilty of this corrupt practice.
The appeal has been fought by Seshadri on the grounds that the plea which was included on this head in the election petition was vague and not sufficiently definite so as to give him notice of the charge he had to meet, that a charge of corrupt practice is of the nature of a criminal charge and must therefore be 1022 proved by the election petitioner himself beyond all reasonable doubt, that there exists some room for doubt and therefore he should have the benefit of it and that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had procured on his own behalf.
It is therefore contended that all the evidence which the learned Judge collected suo motu should not be locked at and the case of the petitioner should be confined to the bare plea which was raised in this case.
If this is so, says Seshadri, the election petition deserves to be dismissed because the case as found was not clear in the plea and was certainly lacking in the proof as required by law.
Since the matter is one fought primarily with regard to pleadings in the case, we shall begin by setting out the pleas which have been advanced by the election petitioner.
The plea consists of several parts.
The election petitioner states that the Swatantra Party and its agents conveyed the voters to and from the polling booths in certain cars hired or procured from M/s Kumarswamy Automobiles and T.S. Narayanan, Authorised Tourist Taxi Operators.
The petitioner goes on to say that the detailed analysis of the use of the cars and particulars of the user are given in a schedule attached to his petition.
That schedule names a large number of cars which were used and at many polling booths in different divisions for the purpose of carrying the voters to the polling booths.
Some of these cars came admittedly from the garage of Messrs. Kumarswamy Automobiles and some others from the other motor garage named by us or were loaned for the day by certain private owners including companies.
The essence of this plea is that cars were procured or hired for the conveyance of the voters.
There is, however, no mention in the plea as to who had hired the vehicles or caused them to be procured and it is this fact which has been made much of by Seshadri in the appeal before.
His contention is that without the particulars being sufficiently full and precise, it was not possible for him to controvert the case set up against him, particularly as the case of the election petitioner was supplemented by the learned Judge by calling at a later stage court witnesses who deposed to the connection between the cars and Seshadri.
We have, therefore, to determine first whether the plea which was raised was sufficient for the purpose of investigation before we go to see whether the plea has received adequate support through evidence.
Seshadri personally argued his appeal on two separate occasions.
On the first occasion he confined himself entirely to the pleas he expounded it and urged in support that the plea in the election petition did not allege anything nor did the evidence in 1023 support establish anything further.
But before the case concluded, Seshadri made a request to us that as he had misunderstood his own position with regard to the appeal, regard being had to certain observations of the Court, he had not argued the case fully on the first occasion and he should be allowed an opportunity to supplement his arguments by urging the points de novo.
Since Seshadri was conducting his case in person and appeared to be under some emotional stress, we felt that the ends of justice would be satisfied if we accorded him a second opportunity and this is how the case was set down again for hearing.
On the second occasion Seshadri supplemented his arguments with numerous citations from the law reports in support of two propositions, namely, that the particulars should be complete before the evidence could be looked into and secondly that amendment of the pleadings through evidence is not permissible.
It may be mentioned here that the evidence in the case discloses that not one, two or three cars were used but as many as 63 cars were employed.
This evidence has been weighed by the learned Judge.
He has gone critically into every aspect of it and come.
to the conclusion that many cars in fact were used.
The learned counsel for Vasantha Pai placed in our hands a tabulated statement of the evidence bearing upon the use of the cars and having looked into the judgment of the learned Judge as also the evidence with the aid of the tabulated statement, we are satisfied and it is sufficient to say for us that we entirely agree with the conclusion of the learned Judge that many cars were, in fact, used for conveyance of voters in this constituency.
The alternative suggestion that on some of the days an election from the Teachers ' Constituency was going on and that since the polling booths were sometimes located for the two constituencies in the same building, it is possible that the cars were used for that election and not this, does not merit any consideration.
The suggestion is extremely vague and the evidence even more tenuous.
It is said that one Varadachari was responsible for the hiring of the cars and that in our opinion does not stand either substantiated or any scrutiny.
We are therefore satisfied with the finding of the learned Judge in the High Court that cars that were employed for conveyance of voters and that they were in fact used in this constituency and none other.
The question then remains as to who was responsible for this? Now the plea on this subject, as we have said, is contained in several parts of the election petition.
One part we have summarised above.
The second part was that the Swatantra Party_ was supporting Seshadri and that the workers of the Swatantra Party were working strenously for his success.
From this it has been reasoned in the High Court that the Swatantra Party was an agent of Seshadri.
Its actions therefore would be his actions L6Sup.
C.I/69 14 1024 if he was a Consenting party.
In this connection it is also stated that Seshadri was being supported by some persons connected with him who helped him by procuring these vehicles for the conveyance of the voters.
In the schedule which is filed with the plaint a large number of cars is mentioned and the schedule shows in one of its columns to which polling booths were the voters carried.
It is too detailed to be reproduced here.
Suffice it to say that it contains names of six divisions and 17 polling booths.
It also mentions over two dozen cars which were so used.
In the body of the election petition, the petitioner further stated as follows: "Besides Tourist Taxis, the petitioner understands the Private Commercial Firms and Cinema Producers placed at the disposal of the first respondent their cars for conveying voters.
The persons who were conveying the voters were members of the Swatantra Party, who were acting as the Agents of the first respondent under the guidance in particular of Mr. H.V. Hande.
The Agents of the first respondent wore a distinctive badge with R.M. Seshadri printed in bold letters attached to a blue ribbon and pinned to their shirts.
They were either escorting the voters or receiving them at the polling stations specified above.
In Booth Nos. 60 to 65, prominent among the persons so escorting was Violin Mahadevan who had a badge pinned to his shirt and who the petitioner understands is a member of the Swatantra Party.
In Saidapet South, the petitioner states, the car MSS 3336 conveying the voters was in charge of an Advocate 's Clerk by name T.K. Vinayagam of No. 16, Karani Garden II Street, Saidapet, Madras 15.
The said Vinayagam was wearing a badge of Mr. Seshadri.
At Raja Annamalaipuram the petitioner learns that a green coloured Station Wagon MSP 5398 was in charge of Mr. Venkataraman, member of the Swatanthra Party and residing at 30, IV Main Road, Raja Annamalaipuram, Madras 28.
The petitioner states that in almost every polling booth, Tourist Taxis and cars engaged by the first respondent were being used by the Swatanthra Party Agents for conveying voters.
" Seshadri contends that in this plea only four names are mentioned, namely, H.V. Hande, Violin Mahadevan, T.K. Vinayagam and Venkatraman.
He starts therefore by analysing whether the connection between these persons and him had been successfully established and further whether they were responsible for 1025 conveying voters to the polling booths in the cars.
He examines critically the evidence of these witnesses before us and also the other evidence bearing upon the subject and contends that the evidence taken as a whole does not establish their connection with him or with the voters or with the cars.
We shall, therefore, begin by considering what was said about these persons by Seshadri.
In regard to Hande, Seshadri 's contention is that no other person had spoken about Hande excepting the petitioner (P.W. 33) and he spoke about him only in one place.
He therefore states that the evidence on this part is extremely insufficient because it depends upon the interested word of the petitioner himself.
He refers us to his deposition contained in pages 419 to 531 of the Paper Book, but he draws our attention in particular to certain passages where only one car was mentioned by him in connection with Hande.
That car was MSR 7065.
The evidence of the election petitioner was that as he was emerging from Doraiswamy Road he found that this car was going past him with a gentleman with a blue upper cloth.
The gentleman looked at him and he found that it was Hande.
According to Seshadri this evidence was not sufficient to show that Hande was conveying voters to the polling booth.
On this part of the case Seshadri is right because the evidence of the complicity of Hande with the hiring or procuring of the cars was not established nor his complicity with regard to the carriage of voters to the polling booths.
With regard to Vinayagam, Seshadri 's argument is that the fact is deposed to by the election petitioner himself who said that he had seen a car with a lady and a gentleman arriving at the polling booth and that a lawyer 's clerk opened the door and received them.
This car bore the number MSS 3336.
Support for this evidence is sought by the election petitioner through the evidence of Laxshaman Hegde (P.W. 15) who said that he had seen an Ambassador car carrying two voters just halting at the polling booth.
Two voters whom he knew from before came down from the car.
A 'short gentleman ' directed them to the polling booth.
Vasantha Pai then asked the witness if the person was known to the witness.
As he did not know the name of the gentleman he could not tell him but Vasantha Pai noted the number of the car.
This person who received the voters at the polling booth was later identified by the witness as Vinayakam.
The way in which he obtained this information has been given by him in his deposition.
He appears to have obtained it from the person concerned.
Whatever it may be, there is nothing incriminating in a worker of the party receiving a voter at the polling booth.
Polling agents cannot canvass within 100 meters but there is nothing to show in the law that they cannot open the door of a car in which a voter has arrived.
The gravamen of the charge, as Seshadri correctly points out was that Vinaya 1026 kam was wearing a badge such as we have described and that of course is a different matter and we are not concerned with it here.
On the whole, therefore, this evidence does not show that the cars were hired by Seshadri.
It only furnishes some link in the circumstantial chain to which we shall later refer and that in our opinion is the only use to which this evidence can be put.
The next person connected with the use of the car is Venkatraman.
Three persons deposed to his connection.
of these one is the election petitioner himself; the others are P.Ws. 23 and 27.
Seshadri argues that we should not believe these witnesses; one because he is himself a party and the other two because they were connected intimately with the prospects of Vasantha Pal.
K.V. Padmanabha Rao (P.W. 23) is said to be the junior of Vasantha Pal and was canvassing for him.
He was standing near the vehicle with a list, presumably of the voters, and at that time several vehicles arrived there.
He stated that he connected Venkataraman with Seshadri because he was moving about in the company of one Sivasankaran (Junior of Seshadri) in the IInd Main Road.
He had also seen him with Sivasankaran going with lists in his hand from house to house.
Later he found out from some of his friends what was the purpose of this visit and was told that they were asking the voters whether they needed any conveyance for the next day 's polling, as they had command over a large number of vehicles.
The latter part of the evidence is hearsay and Seshadri is perfectly right in claiming that it should not be accepted.
The fact remains that the witness did see Venkataraman moving with the clerk of Seshadri and therefore there is room for thinking that they were connected together.
T.L. Ram mohan (P.W. 27), it is said, was assisting Vasantha Pai.
He wrote a letter Ext.
P 109 and his evidence is also described as hearsay.
We need not therefore go by his evidence to reach the conclusion that the cars were hired by Seshadri or some one on his behalf.
We can only use this evidence if there were some other evidence to which it can be read as corroborative, because by itself it does not furnish proof of the hiring of vehicles by Seshadri.
it only shows that the vehicles were in fact used and that the vehicles were bringing voters to the polling booth.
The connection of Violin Mahadevan was deposed to by four witnesses.
V. Murali (P.W. 5) who works in the chamber of two lawyers Rao and Reddy admitted that he.was working for Vasantha Pai.
He also said that he saw Violin Mahadevan wearing the badge and standing near the polling booth.
He stated this to Vasantha Pai and communicated to him his own observation.
He admitted that he did not know Violin Maha .
devan from before but somebody had told him about him.
He could not name the voters who had been brought.
He saw that Violin Mahadevan was wearing the same badge which we have 1027 described and the voters were accosted by persons wearing the same badge and were received at the polling booth.
section Ramamurthy (P.W. 10) saw Venkataraman.
He admitted that he had not seen anybody brought by Venkataraman and he also did not know the names of the voters who were brought.
But the evidence of section Ramamurthy (P.W. 10) is sufficient to show that the voters did in fact come by cars to the polling booth.
Therefore to that extent, his evidence is material in determining whether the alleged corrupt practice was committed or not.
A. Sankaran (P.W. 20) also saw Violin Mahadevan receiving voters at the polling booths.
Seshadri contends that as the plea was limited to the naming of these four persons, it is clear that the plea as made was insufficient to bring home the charge which is now brought to his door, namely, that he had hired or procured these vehicles.
As has been said above, the hiring and procuring of the vehicles is a totally different matter.
These witnesses only speak to what they saw at the polling booths and their evidence is believable that voters were brought to the polling booth.
The question is by whom? The case then goes on to another point and that is: Where did the cars come from? Neither side had examined either Kumarswamy or the owner of the other garage or any other person.
The learned Judge then felt that he should examine some court witnesses and he summoned three, namely, Kumarswamy (C.W. 2), Krishnaswamy (C.W. 3) and one Ganesan (C.W. 1).
He also called for a report from the police as to whom the cars belonged and he perused the evidence of these three witnesses as also the report sent by the police and come to the conclusion that the hiring or procuring was by Seshadri himself.
A great deal of argument is therefore directed by Seshadri to exclude the evidence of these witnesses and the reference to the police to find out to whom the cars belonged.
In this connection Seshadri cites a number of ruling which he says show quite clearly that a plea cannot be allowed to be magnified particularly by evidence not brought by the parties, but at the instance of the Court.
This requires an examination closely.
The first contention of Seshadri is that the Court trying the election petition is limited by the law which is contained in the Representation of the People Act and the Rules made thereunder.
This law, according to him, confers no power upon the Presiding Judge to enter the arena to summon witnesses on his own behalf.
The learned Judge who summoned witnesses passed a very short order while doing so.
He did not refer to any law on the subject but extracted a passage from the trial of Warren Hastings in which it was stated that a Judge 'is not to be a dummy but is to take an active interest in the case.
Seshadri contends therefore that the action of the Judge in summoning the court 1028 witnesses was entirely erroneous and that this evidence should be excluded.
The Vower of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Code of Civil Procedure.
Now the Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions.
It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.
It must be remembered that an election petition is not an action at law or a suit in equity.
It is a special proceeding.
The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition may be continued by another person, so long as another person is available.
The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of real practices including corrupt practices at elections should be thoroughly made.
Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths.
The question is: in the face of this voluminous evidence was it not open to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose to the same ? In our opinion, such a power was properly exercised by the learned judge.
Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice.
Section 98 of the Act itself allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be more so in the case of a candidate whose name.
appears to be connected with the corrupt practice, the proof whereof is not before the Court but can be so brought.
In such a ease we think that the court would be acting within its jurisdiction in using O. XVI r. 14 to summon witnesses who can throw light upon the matter.
Having disposed of this preliminarg objection, we are now in a position to consider the evidence which was brought; but before doing so, we must show its relevance to the pleas which had been raised in the case, because much discussion was made 1029 of the law of pleadings in the case.
We have pointed out above that the plea in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law.
The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths have been mentioned.
It is true that the drivers of the cars or the voters themselves have not been examined.
But it has been sufficiently pleaded and proved that the cars were in fact used.
The connection of Seshadri with the use of the cars has been specifically pleaded.
In our opinion, the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters.
This is exactly what has happened in this case.
The learned Judge after reaching the conclusion that a large number of cars were used for conveying voters to the polling booths,.
felt impelled further to consider who was responsible for hiring them.
The names of the two garages were already given and there was the allegation that certain companies and cinema producers were also helping Seshadri by the loan of cars.
Since the name of Kumarswamy 's garage was mentioned, it was but natural for the Judge to have summoned the proprietor of the garage.
The proprietor of the garage came and gave the story about the use of the cars by some other candidate but not Seshadri.
lie however brought on record documents to show that the cars were hired on payment from his garage by one Krishnaswamy.
The next step was therefore to summon Krishnaswamy and he was therefore summoned and questioned.
Krishnaswamy admitted that he had hired these cars and paid bills amounting to a few thousand rupees.
It is obvious that these cars were not employed for any other purpose that day except for election work.
It is ridiculous to imagine that they were ordered for a picnic or for a marriage which did not take p1ace.
Therefore the inference was that Krishnaswamy had hired these cars to convey voters to the polling booths.
The question therefore boils down to this, for whom was Krishnaswamy working? Here we have the evidence of various types against Krishnaswamy.
Kumarswamy and Krishnaswamv have been amply proved in the ease to be connected with Seshadri.
Kumarswamv was shown exhibit c 2A. lie stated that it was an order form filled bV R. Krishnaswamy.
He also admitted that he had received payments and that the trip sheets of the cars were maintained for that date.
Those trip sheets are C 7 to C 36.
Now with regard to these trip sheets, it may be stated that in some of them there was mention that the cars were used for election work, but subsequently it was 1030 found that someone had rubbed out that entry.
We are not here to find out who was guilty of attempting to create evidence by rubbing this out.
The fact remains that some of the trip sheets still read clearly that the cars had been used for election work.
exhibit C 6 was the bill which was issued for these cars, and it was issued to Krishnaswamy.
Therefore the cars were engaged at least from Kumarswamy garage for conveying voters and they were hired by Krishnaswamy and he paid for them.
Now Krishnaswamy is connected intimately with Seshadri.
He was employed by two companies in which Seshadri was a Director.
A party was arranged in honour of Seshadri to celebrate his victory.
The arrangement for this was made by Krishnaswamy although the expenses for the party were paid by Seshadri by cheque.
Seshadri contends that his entire accounts were.
examined but it was not proved from those accounts that he had paid any money towards the hire of the cars.
It is not possible for anyone to say how Seshadri, if he was willing to pay for the cars, would have procured the money.
It would have been the worst thing for him to have paid the amount by cheque so that it could enter into the accounts.
Obviously such payments would be made in a way that they could not be traced back to the person actually paying the amount.
The connection, however, of Krishnaswamy with the hiring of the cars and with the celebration of the victory of Seshadri furnishes a very important link in the chain of reasoning.
It is quite clear to us that the Swatantra Party was in favour of Seshadri.
Seshadri relies upon finding which has been given by the Court in which it is stated that the Judge found that the first respondent, the Swatantra party and the persons mentioned therein acted as agents of the first respondent and committed corrupt practices under section 123(5) with which we are now dealing.
The argument was that this finding.
is somewhat obscure because it shows that the first respondent was the agent of the first respondent himself.
It seems to us that the learned Judge in recording this finding gave it unthinkingly taking the words from the plea in the petition.
It is quite clear that the learned Judge reaches the conclusion that the Swatantra party was working actively in support of Seshadri.
It is of course not proved, that he was the adopted candidate of the party nor is it proved that he had appointed any particular person as his agent, but it is quite clear that the Swatantra party was actively supporting him.
Thus there is the presence of the workers of the Swatantra party like Hande, Vinavakam, Violin Mahadevan and Venkatraman on the scene at the polling booths.
It may also be mentioned that in one of the trip sheets, one Kalyanasundaram had signed in token of the cars having been used.
This Kalyanasundaram was the polling agent of Seshadri.
The circumstantial 1031 evidence is now complete.
There is the hiring of the cars from the Kumaraswamy Garage by Krishnaswamy, the payment of money by Krishnaswamy to the garage, Krishnaswamy 's attachment to Seshadri because of his past connection and the further proof that he arranged the party on his behalf after his victory and the trip sheet was signed by Kalyanasundaram the polling agent of Seshadri.
The amount paid was so large that only a candidate would incur that expense, and no supporter.
If there was any doubt as to who hired or procured these cars, it is resolved by the concatenation of circumstances which clearly demonstrate that it could have been only Seshadri and no one else who had hired these vehicles.
We can infer this circumstantially even though direct evidence be not available.
In addition, there is the patent fact that Seshadri did not himself go into the witness box and clear these facts standing out against him although opportunity ' was offered.
It is true that Seshadri complained before us that the plea was vague, that it had been magnified by the evidence brought in this manner and the Court allowed the election petitioner to take advantage of the evidence so brought, but we have already held that the evidence was legitimately brought and that it could be led in the case.
As to the plea, we have already shown that it was sufficiently cogent to establish the connection between Seshadri and the hiring and procuring of the cars.
The missing links were supplied by that evidence by showing the connection of the only person who had hired the cars and paid several thousand rupees for their hire.
If that person is intimately connected with Seshadri, the conclusion is inescapable that it was Seshadri for whose benefit the cars were hired or procured.
In our opinion, the circumstantial chain of evidence is sufficient to show the connection between him and the use of the cars for the conveyance of voters.
As to the rulings which were cited before us, it is sufficient to say that each case is decided on its own facts, and circumstances.
It is true that better particulars can only be given by the party, but that is only where better particulars are required.
It was not necessary for Vasanta Pai to have pleaded his evidence in this behalf.
He made a very full plea by giving the numbers of the cars, by naming the polling booths at which voters were brought and by stating quite categorically that it was Seshadri who had procured these cars for the conveyance of voters.
Rest was matter of evidence and the facts had to be established by evidence.
It may be that without the evidence of Kumaraswamy and Krishnaswamy the case might have taken a different turn but we have already pointed out that the learned Judge very correctly brought these two persons intimately connected with the cars into the Case before him, and to give their version.
Their version is partly 1032 true and partly false and the false evidence was to exclude Seshadri from the charge.
In our opinion, this also demonstrates the connection between these persons and Seshadri which had been established in other ways through their own mouths.
We accordingly hold that this corrupt practice was brought home.
It remains to consider the argument of Mr. Gupte whether Vasanta Pai could be declared elected.
This will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected.
In a 'single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidate who got eliminated at the earlier counts, those candidates would have won.
We cannot order a recount because those voters were not free from complicity.
It would be speculating to decide how many of the voters were brought to the polling booths in the cars.
We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.
In the result therefore, we set aside the direction that Vasanta Pai is elected to the constituency.
There will inevitably have to be a fresh election in this constituency.
In so far as Seshadri is concerned, we think that he was properly named as guilty of corrupt practice although that order was incorporated by the learned Judge through a review.
It was his duty to have named persons who had been guilty of corrupt practice and he made this up later.
There is no need for any specific power for review since the power to name any person guilty of corrupt practice is already contained in the Act.
Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose; that order was correctly made.
In the result, the appeal fails and it will be dismissed with costs.
R.K.P.S. Appeal dismissed.

Output:
The appellant was elected to the Madras Legislative Council from the Madras District Graduates Constituency.
His election was challenged by the Respondent, his nearest rival candidate by an election petition alleging, mainly, that a large number of cars had been employed for the conveyance of voters to the polling booths in violation of section 123(5) of the Representation of the People Act, 1951.
The High Court held that the corrupt practice was established and set aside the appellant 's election.
It also declared the respondent elected in his place.
The original order passed by the High Court did not :name the appellant as guilty of corrupt practice but the Court, by a subsequent order reviewing its previous order, gave a declaration to that effect.
In the appeal to this Court, it was contended by the appellant that the plea in the petition regarding violation of section 123(5) was vague and not sufficiently defined so as to give him notice of the charge he had to meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had no power to do.
It was therefore contended that all the evidence which the learned Judge collected suo motu should not be looked at and if the case of the petitioner was confined to the bare plea raised, the petition would deserve to be dismissed because it was not clear in the plea and was lacking in proof.
HELD: dismissing the appeal: On the facts, the High Court had rightly found that many cars were employed for the conveyance of voters in the constituency.
The circumstantial chain of evidence was sufficient to show the connection between the appellant and the use of the cars for the conveyance of voters.
The corrupt practice under section 123(5) was therefore brought home.
A B] (i) The plea in the petition in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law.
The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths had been mentioned.
The connection of the appellant with the use of the cars had been specifically pleaded.
Sufficient particulars of the allegation had therefore been given and the rest were matters of evidence which did not require to be pleaded.
(ii) The power of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Co& of Civil Procedure.
The Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be ,applicable to the trial 1020 of civil suits may be followed in the trial of election petitions.
The court trying an election petition therefore has the power to summon a Court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.
The policy of election law seem to be that for the establishment of purity of elections, investigation into to be that for the nasal factices including corrupt practices at elections all allegations of malpractices include corrupt practices at elections should be thoroughly made.
In the present case a large number of cars were obviously used presumably for the purpose of carrying voters to the booths.
In the face of this voluminous evidence it was open to the judge, if evidence was available to establish who had procured or hired judge, summon witnesses who could depose to the same.
Such a vehicles, to exercised by the learned judge .
[1028 B F] (iii) In the present case it was not possible to reach the conclusion the voters were brought to the polling booths in violation of that 23(5), the result de the election had been materially affected.
In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which the appellant had got, had gone to one of the other candidates who were eliminated at the earlier counts, those candidates could have won.
The declaration of the respondent 's election would be merely a guess or surmise as to the nature of the voting which would have taken place if the corrupt practice had not been perpetrated and the High Court 's direction declaring him elected must therefore be set aside.
[1032 B D] (iv) The appellant was properly named as guilty of corrupt practice although the order was incorporated by the learned Judge through a review.
It was his duty to have named persons who had been guilty of corrupt practice and he made this up later.
There is no need 'for any specific power for review since the power to name any person guilty of corrupt Practice is already contained in the Act.
Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose that order was correctly made.
[1032 E]


Input:
Appeal No. 197 of 1956.
Appeal from the judgment and order dated August 6,1954, of the Bombay High Court in Appeal No. 30 of 1954, arising out of the judgment and order dated January 28, 1954, of the said High Court in Insolvency No. 74 of 1951.
1385 M. C. Setalvad, Attorney General for India, section N. Andley and J. B. Dadachanji, for the appellants.
Purshottam Tricumdas and I. N. Shroff, for the respondent.
February 20.
The following Judgment of the Court was delivered by GAJENDRAGADKAR J.
This appeal by special leave arises from the notice of motion taken out by the respondent official assignee under section 55 of the Presidency towns Insolvency Act against the appellants for a declaration that a deed of gift executed by the insolvent Daulatram Hukamchand on May 22, 1950, in favour of the appellants was void.
It appears that some creditors of Daulatram filed a petition in the High Court of Judicature at Bombay, Insolvency Case No. 74 of 1.951, for an order that the said Daulatram be adjudged insolvent as he had given notice of suspension of payment of the debts on August 2, 1951.
Daulatram was adjudicated in solvent on August 21, 1951, with the result that the estate of the insolvent vested in the respondent under section 17 of the Act.
On September 26, 1951, the respondent took out the present notice of motion.
The impugned deed of gift has been executed by the insolvent in favour of his wife and three sons who are the appellants before us.
In reply to the notice of motion appellants I to 3 filed a joint affidavit setting out the facts and circumstances under which the said deed of gift had been executed by the insolvent in their favour.
In substance, the appellants ' case was that, though the document purported to be a gift, it was really a transaction supported by valuable con sideration and as such it did not fall within the mischief of section 55 of the Act.
At the hearing of this notice of motion before Mr. Justice Coyajee, when the appellants sought to lead evidence in support of this plea, the respondent objected and urged that the evidence which the appellants wanted to lead was inadmissible under section 92 of the Indian Evidence Act.
The learned Judge, however, overruled the respondent 's objection and allowed the appellants to lead 1386 their evidence.
In the end the learned Judge did not accept the appellants ' contention and, by his judgment delivered on January 28, 1954, he granted the declaration claimed by the respondent under section 55 of the Act.
Against this judgment and order the appellants preferred an appeal (No. 30 of 1954) which was heard by Chagla C. J. and Shah J.
The learned Judges took the view that Mr. Justice Coyajee had erred in law in allowing oral evidence to be led by the appellants in support of their plea that the transaction evidenced by the deed of gift was in reality a transfer for consideration.
The learned Judges held that the gift in question had been executed by the donor in favour of the donees out of natural love and affection and that, under section 92, it was not open to the appellants to lead evidence to show that the transaction was supported not by the consideration of natural love and affection but by another kind of valuable consideration .
On this view of the matter the learned Judges did not think it necessary to consider the oral evidence actually led by the appellants and decide whether Mr. Justice Coyajee was right or not in rejecting the said evidence on the merits.
That is how the appeal preferred by the appellants was dismissed on August 6, 1964.
On September 23, 1954, the application made by the appellants for a certificate was rejected by the High Court at Bombay; but special leave was granted to the appellants by this Court on November 3, 1954, and that is how the appeal has come before us for final disposal.
The principal point which arises in this appeal is whether the appellants were entitled to lead oral evidence with a view to show the real nature of the impugned transaction.
In deciding this question, it would be necessary to consider the true scope and effect of sections 91 and 92 of the Evidence Act.
Chapter VI of the Evidence Act which begins with section 91 deals with the exclusion of oral by documentary evidence.
Section 91 provides that, " when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, 1387 and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary As, evidence is admissible under the provisions hereinbefore contained.
" The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original.
Section 91 is based on what is sometimes described as the " best evidence rule ".
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents.
In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.
Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under section 91 ; in other words ' it is after the document has been produced to prove its terms under section 91 that the provisions of section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms.
The application of this rule is limited to cases as between parties to the instrument or their representatives in interest.
There are six provisos to this section with which we are not concerned in the present appeal.
It would be noticed that sections 91 and 92 in effect supplement each other.
Section 91 would be frustrated without the aid of section 92 and section 92 would be inoperative without the aid of section 91.
Since section 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved 176 1388 under section 91, it may be said that it makes the proof of the document conclusive of its contents.
Like section 91, section 92 also can be said to be based oil the best evidence rule.
The two sections, however, differ in some material particulars.
Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas section 92 applies to documents which can be described as dispositive.
Section 91 applies to documents which are both bilateral and unilateral, unlike section 92 the application of which is confined only to bilateral documents.
Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents.
Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest.
There is no doubt that section 92 does not apply to strangers who are not bound or affected by the terms of the document.
Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document.
It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by section 92 about the exclusion of oral agreement can be invoked.
This position is made absolutely clear by the provisions of section 99 itself.
Section 99 provides that " persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
" Though it is only variation which is specifically mentioned in section 99, there can be no doubt that the third party 's right to lead evidence which is recognized by section 99 would include, a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them.
If that be the true position, before considering the effect of the provisions of section 92 in regard to the appellants ' right to lead oral evidence, it would be necessary to examine whether section 92 applies at all to the present proceedings between the official assignee who is the respondent and the 1389 donees from the insolvent who are the appellants before us.
Does the official assignee represent the insolvent, and can he be described as the representative ininterest of the insolvent, when he moves the Insolvency Court under section 55 of the Presidency towns Insolvency Act ? It is true that, under section 17 of the Act, on the making of an order of adjudication, the property of the insolvent wherever situate vests in the official assignee and becomes divisible among his creditors; but the property in respect of which a declaration is claimed by the official assignee under section 55 has already gone out of the estate of the insolvent, and it cannot be said to vest in the official assignee as a result of the order of adjudication itself.
Besides, when the official assignee makes the petition under section 55 he does so obviously and solely for the benefit of the creditors.
An insolvent himself has, and can possibly have, no right to challenge the transfer effected by him.
In this respect the official assignee has a higher title than the insolvent and, when, under section 55, he challenges any transfer made by the insolvent, he acts not for the insolvent or on his behalf, but in the interest of the whole body of the insolvent 's creditors.
In theory and on principle, as soon as an order of adjudication is made, all proceedings in regard to the estate of the insolvent come under the control of the Insolvency Court.
It may be said that the official assignee in whom the estate of the insolvent vests is to guard not only the interests of the creditors of the insolvent but also " public morality and the interest which every member of the public has in the observance of commercial morality "(1).
There is no doubt that it is the Insolvency Court alone which has jurisdiction to annul the insolvent 's transactions, whether the case is governed by the Presidency towns Insolvency Act or by the Provincial Insolvency Act; and so the proceedings taken under section 55 cannot be deemed to be proceedings taken for and on behalf of the insolvent at all.
(1) " The Law of Insolvency in India " By Rt.
Sir D. F. Mulla, Kt. 2nd Ed., p. 231.
1390 The provisions of section 55 themselves support the same conclusion.
Under section 55, any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration shall, if the transferor is adjudged insolvent within two years of the date of transfer, be void against the official assignee.
This section, like section 53 A of the Provincial Insolvency Act, makes the impugned transfers voidable at the instance of the official assignee or the receiver.
The transfers in question are not declared void as between the parties themselves; they are avoided by the official assignee or the receiver and their avoidance is intended to enure for the benefit of the whole body of the creditors of the insolvent.
The relevant sections of the two Insolvency Acts in effect require the Insolvency Courts to set aside the impugned transactions in exercise of the Insolvency Courts ' exclusive jurisdiction in that behalf The obvious object of these provisions is to bring back to the insolvent 's estate, property which has left the estate by the impugned act of the insolvent himself and make the said property available for distribution amongst his creditors.
It would, therefore, be impossible to hold that, when the official assignee makes a petition under section 55 of the Act, he is acting as a representative ininterest of the insolvent.
In this connection it would be relevant to remember that, in cases governed by the Presidency towns Insolvency Act, the practice in Calcutta and Bombay consistently allows a creditor who has proved his debt to file a petition to set aside the transfer under section 55 of the Act if he shows that the official assignee, on being tendered a reasonable indemnity has unreasonably refused to make an application.
Similarly, under section 54 A of the Provincial Insolvency Act, a creditor himself can make the application if the receiver refuses to take any action.
Now, if an application is made by a creditor for setting aside a voluntary transfer effected by the insolvent, there can be no doubt that the creditor is not the representative 1391 in interest of the insolvent and the creditor would obviously not be affected by the provisions of section 92 of the Indian Evidence Act.
It would really be anomalous if section 92 were to apply to proceedings instituted by the official assignee under section 55 though the said section cannot and would not apply to similar proceedings instituted by a creditor.
Having regard to the object with which section 55 has been enacted, the nature of the proceedings taken under it, and the nature and effect of the final order which is contemplated under it, it is clear that, like the creditor who may apply, the official assignee also cannot be said to be the representative in interest of the insolvent in these proceedings.
If that be the true position, section 92 cannot apply to the present proceedings between the respondent and the appellants; and so there can be no doubt that the respondent would not be precluded from leading evidence of an oral agreement for the purpose of contradicting, varying, adding to or subtracting from the terms of the impugned document.
The question raised by Shri Purushottam which still remains to be considered is whether the appellants who undoubtedly are the representatives in interest of the insolvent can avoid the application of a. 92.
In our opinion, the answer to this question must be in favour of the appellants.
It is urged before us by Shri Purushottam that the scheme of the relevant provisions of Ch.
VI of the Indian Evidence Act is inconsistent with the appellants ' contention that they can lead oral evidence about the alleged agreement which may tend to change the character of the transaction itself.
Shri Purushottam bases his argument mainly on the provisions of section 91 read with section 99 of the Act.
He contends that section 91 requires the production and proof of the document itself for the purpose of proving the contents of the document; and by necessary implication all evidence about any oral agreement which may affect the terms of the document is excluded by section 91 itself.
We are not impressed by this argument.
As we have already observed, sections 91 and 92 really supplement each other.
It is because section 91 by itself would not have excluded 1392 evidence of oral agreements which may tend to vary the terms of the document that section 92 has been enacted; and if section 92 does not apply in the present case, there is no other section in the Evidence Act which can be said to exclude evidence of the agreement set up by the appellants.
What section 91 prohibits is the admission of oral evidence to prove the contents of the document.
In the present case, the terms of the document are proved by the production of the document itself.
Whether or not the said terms could be varied by proof of an oral agreement is a matter which is not covered by section 91 at all.
That is the subject matter of section 92; and so, if section 92 does not apply, there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction.
Shri Purushottam 'also relied upon the provi sions of section 99.
His argument is that it is only persons who are not parties to a document or their representatives in interest who are allowed by section 99 to give evidence of facts tending to show a contemporaneous agreement varying the terms of the document.
lit other words, the effect of section 99 is not only to allow strangers to lead such evidence, but to prohibit parties or their representatives in interest from leading such evidence independently of tile provisions of section 92 of the Evidence Act.
We do not read section 99 as laying down any such prohibition by necessary implication.
As a matter of fact, from the terms of section 92 itself, it is clear that strangers to the document are outside the scope of section 92 ; but section 99 has presumably been enacted to clarify the same position.
It would be unreasonable, we think, to hold that section 99 was intended not only to clarify the position with regard to the strangers to the document, but also to lay down a rule of exclusion of oral evidence by implication in respect of the parties to the document or their representatives in interest.
In our opinion, the true position is that, if the terms of any transfer reduced to writing are in dispute between a stringer to a document and a party to it or his representative in interest, the restriction imposed by section 92 in regard to 1393 the exclusion of evidence of oral agreement is inapplicable; and both the stranger to the document arid the party to the document or his representative in interest are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or subtract from its terms.
The rule of exclusion enun ciated by section 92 applies to both parties to the document and is based on the doctrine of mutuality.
It would be inequitable and unfair to enforce that rule against a party to a document or his representative in interest in the case of a dispute between the said.
party or his representative in interest on the one hand and the stranger on the other.
In dealing with this point we may incidentally refer to the relevant statement of the law by Phipson in his treatise on " Evidence": " Where the transaction has been reduced into writing merely by agreement of the parties ", it is observed, " extrinsic evidence to contradict or vary the writing is excluded only in proceedings between such parties or their privies, and not in those between strangers, or a party and a stranger; since strangers cannot be precluded from proving the truth by the ignorance, carelessness, or fraud of the parties (R. vs Cheadle, 3 B. and Ad. 833); nor, in proceedings between a party and a stranger, will the former be estopped, since there would be no mutuality " (1).
The result is that section 92 is wholly inapplicable to the present proceedings and so the appellants are entitled to lead evidence in support of the plea raised by them.
It appears that the attention of the learned Judges who heard the appeal in the High Court at Bombay was not drawn to this aspect of the matter.
That is why they proceeded to deal with the question about the admissibility of oral evidence led by the appellants on the assumption that section 92 applied.
We must accordingly set aside the decree passed by the court of appeal in the High Court at Bombay and send the appeal back to that Court for disposal on the merits in accordance with law.
In the circum (1) Phipson on Evidence 9th Ed., p. 602.
1394 stances of this case, we think that the fair order as to costs of this appeal would be that the costs should abide the final result in the appeal before the High Court at Bombay.
Appeal allowed.
Case remanded.

Output:
One D executed, on May 22, 1950, a deed of gift in favour of the appellants, his wife and sons.
Upon the application of his creditors D was adjudged an insolvent on August 21, 1951 and his estate vested in the respondent.
On September 26, 1951, the respondent took out a notice of motion under section 55 of the Presidency towns Insolvency Act for a declaration that the deed of gift was void.
In reply the appellants pleaded that the transaction, though it purported to be a gift, was in reality a transfer for valuable consideration.
The respondent objected that the evidence which the appellants sought to lead in support of their plea was inadmissible under section 92 of the Indian Evidence Act : Held, that section 92 of the Evidence Act was not applicable to the proceedings and the appellants were entitled to lead evidence in support of the plea raised by them.
Section 92 is only applicable to cases as between parties to an instrument or their representatives in interest.
Where, however the dispute is between a stranger to an instrument and a party to it or his representative in interest, section 92 is inapplicable, and both the stranger and the party or his representative are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence if believed, may contradict, vary, add to or subtract from its terms.
In the present case, though the appellants were the representatives in interest of the insolvent, the respondent, when he made the petition under section 55 of the Presidency towns Insolvency Act, was not acting as a representative in interest of the insolvent, and, therefore, the proceedings were not between the parties to the instrument or their representatives in interest.