Input:
ivil Appeals Nos. 484 & 485 of 1987.
336 From the Judgment and Order dated 2.12.1986 of the Andhra Pradesh High Court in Election Petition Nos. 3 & 5 of 1985.
P.P. Rao, P. Krishna Rao, V.A. Babu and K.R. Nagaraja for the Appellants.
Shanti Bhushan, G. Narasimhulu and T.V.S.N. Chari for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
These two appeals arise out of the judgments in two Election Petitions in the Andhra Pradesh High Court questioning the election of respondent No. 1 as a Member of Parliament from Srikakulam No. 1 Parliamentary Constituency in the 8th General Election to the House of the People.
The points raised in these appeals are common and so are the relevant facts; and, hence, they are being disposed of by this common judgment.
We propose to take note of only the few facts which are necessary for the appreciation of the controversy before us.
The polling date for the said election along with other parliamentary elections in the State of Andhra Pradesh was December 27, 1984 but in Srikakulam No. 1 Parliamentary Constituency the polling was countermanded and the date of polling was later fixed on January 28, 1985.
In both the Election Petitions the election of respondent No. 1 was questioned mainly on the ground that Shri N.T. Rama Rao, the Chief Minister of Andhra Pradesh as well as the President of the Telugu Desam Party as well as respondent N. 1 gave certain speeches and certain advertisements were got pub lished by Shri N.T. Rama Rao through the Publicity Depart ment of the Government of Andhra Pradesh in the newspapers containing certain statements which are alleged to amount to a corrupt practice within the meaning of the said term in section 123(1)(A) of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act").
The main question canvassed before us is whether the statements contained in these aforesaid advertisements amount to a corrupt practice under section 123(1)(A)(b) of the said Act.
Section 123(1)(A)(b) of the said Act runs as follows: "123.
Corrupt practices The following shall be deemed to be corrupt practices for the purposes of this Act: 337 (1) 'Bribery ', that is to say (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoev er, with the object, directly or indirectly of inducing (a) x x (b) an elector to vote or refrain from voting at an election, or as a reward to (i) a person for having so stood or not stood, or for having withdrawn or not having with drawn his candidature; or (ii) an elector for having voted or refrained from voting.
" The advertisements very shortly stated, refer to the auspicious gifts made by the Government of Andhra Pradesh to the poor people on the eve of New Year and Sankranti.
In the said advertisements, it is stated that the said Government which was formed by the Telugu Desam Party was giving to the poor people whose income was below Rs.6,000 per year, a kilo of rice at Rs.2 per Kg.
and the said advertisements referred to a new scheme of selling sarees and dhoties at half prices to the poor people in the State of Andhra Pradesh having Green cards.
Green cards were directed to be issued to all the persons whose annual income was below Rs.6,000.
The supply of the rice at subsidised rates as aforesaid was also to be made to the Green card holders only.
The scheme to sell sarees and dhoties at subsidised rates was to be opera tive from January 26, 1985 to March 31, 1985.
In considering the question whether the said advertise ment and the said speeches amount to a corrupt practice, we are of the view that the provisions of section 123 of the said Act which deal with corrupt practices have to be inter preted, keeping in mind that dictates of commonsense require that they never could have been intended to treat normal election promises made in election manifestoes or usual election speeches by members of various political parties aspiring to power and by different candidates aspiring to get elected to legislative bodies concerned as corrupt practices.
We are of the view that these advertisements and speeches amount to nothing more than statements extolling the achievements of the Government of the State of Andhra 338 Pradesh under the Telugu Desam Party headed By N.T. Rama Rao, the Chief Minister and contain normal election promises and these statements do not amount to corrupt practices falling within the scope of sub clause (b) of clause (A) of sub section (1) of section 123 of the said Act.
It was urged by Mr. Rao, learned counsel for the appel lants that in the impugned judgments, the High Court has incorrectly taken the view that in order to amount to brib ery within the meaning of the said term in section 123(1)(A), the transaction must amount to a bargain by the candidate with a view to get votes.
It was pointed out by him that the said view has been taken in the impugned judg ments, relying upon the decision of a Bench comprising two learned Judges of this Court in Ghasi Ram vs Dal Singh and Others, ; at pp 109 110.
We have gone through to the relevant portion of that judgment (at page 109 and 110 of the said report).
A careful perusal of the said judgment shows that what has been really held in that case is that if the promises given or made amount to a bargain entered into by a candidate for a vote or votes, that would amount to a corrupt practice; but it has not been held there that unless the act alleged amounts to such a bargain, it could not amount to a corrupt practice.
In our view, that judgment does not lay down that in order to amount to a corrupt practice, the transaction must amount to a bargain for getting a vote.
It was pointed out by Mr. Rao, however, that such a view seems to have been taken in two other decisions rendered by two Benches, each comprising two learned Judges of this Court in Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, ; at p. 543 and Harjit Singh Mann vs section Umrao Singh and Others, ; at p. 5 10 and these judgments need to be overruled.
We do not propose to go into the correctness or otherwise of this view because, even on the footing that in order to amount to a corrupt practice under the aforesaid provision the alleged acts need not constitute a bargain, the acts established in the present case, in our opinion, do not amount to a corrupt practice.
Our attention was drawn by Mr. Rao to the fact that in this case the said advertisements and the speeches had to be viewed in the context of the fact that the advertisements were issued and the speeches were made after respondent No. 1 filed his nomination papers on January 4, 1985, for the election and before the election was held in the aforesaid constituency.
It was further pointed out that the offer made for the sale of sarees and dhoties at subsidised rates was limited to the period from January 26, 1985 to March 31, 1985.
It 339 cannot be denied that these factors are relevant factors.
We cannot, however, lose sight of the fact that this offer was made not only in this constituency but throughout the State where the elections to the House of the People were sched uled to be held, and were, in fact, held on December 27, 1984.
It was only in case of this constituency that the election to be held on the scheduled date was countermanded and later held on January 28, 1985.
We cannot lose sight of the fact that, as far as the said speeches and the said advertisements, which were issued by the Publicity Depart ment of the State, are concerned, they deal in the main with the achievements of the Government of Andhra Pradesh which, of course, was being run by Ministers belonging to Telugu Desam Party to which respondent No. 1 also belonged.
More over, the offer in the advertisements for the sale of dhoties and sarees at discount rates was in the nature of a benefit offered to poor persons in that State.
When a Gov ernment announces the measures which are intended for the benefit of any of the classes for whose the Government can normally be expected to work like the poor or the economical backward classes, it is only in rare circumstances that such a promise can be said to amount to a corrupt practice within the meaning of section 123(1)(A) even though such a promise might be made on the eve of elections.
Keeping this in mind, in our opinion, although the offer to sell dhoties and sarees at discount rates was of a limited duration as afore stated, it cannot be regarded as a corrupt practice.
Such an offer was bound to have financial repercussions and it is quite possible the duration of the offer was limited to enable the Government to study the financial repercussions rather than from any improper motive.
We find support for this view from the decision of this Court in H.V. Kamath vs Ch.
Nitiraj Singh, that case an Ordi nance was passed by the Government of Madhya Pradesh as a result of which a large number of agriculturists, namely, those holdings of plots of land of less than 7.5 acres area of paying land revenue not exceeding Rs.5 were exempted from the payment of the land revenue.
It was held that such a concession does not amount to a gift, offer or promise of any gratification within the meaning of section 123(1)(A) of the said Act nor does the announcement of the declaration made at a meeting shortly before the election or the issue of a pamphlet containing that declaration at that time carry the matter any further.
It was held that neither Shri D.P. Misra who was the Chief Minister nor Shri S.K. Dixit who acted as his agent were guilty of any corrupt practice within the meaning of the aforesaid provision.
It was next contended by Mr. Rao, although very faintly, that the High Court was in error as it had not decided all other issues which 340 were raised in the election petition.
In this regard we cannot lose sight of the fact that the term of the present Lok Sabha is likely to be over within a few months and fresh elections are likely to be held and it would, therefore, be an exercise in futility to remand the matter to the High Court for deciding the remaining issues.
In the result, the appeals fail and are dismissed.
Looking to the facts and circumstances of the case, there will be no order as to costs.
R.N .J.
Appeals dis missed.

Output:
These two appeals arise out of the judgments in two Election Petitions before the Andhra Pradesh High Court questioning the election of respondent No. 1 as a Member of Parliament from Srikakulam No. 1 Parliamentary constituency in the 8th General Election to the House of the People on the ground that Shri N .T.
Rama Rao the Chief Minister of Andhra Pradesh as well as respondent No. 1 gave certain speeches and certain advertisements were got published by Shri N.T. Rama Rao through the Publicity Department of the Govt.
of Andhra Pradesh in the newspapers containing certain statements which are alleged to amount to a corrupt practice within the meaning of Section 123(1)(A) of the Representa tion of the People Act 1951.
Dismissing the appeals, this Court, HELD: That these advertisements and speeches amount to nothing more than statements extorting the achievements of the Government of the State of Andhra Pradesh under the Telegu Desham party headed by N.T. Rama Rao, Chief Minister and contain normal election promises and these advertise ments donot amount to corrupt practices falling within the scope of sub clause (b) of clause (A) of sub section (1) of Section 123 of the said Act.
[337H; 338A] Ghasi Ram vs Dal Singh & Ors., ; at pp.
109 110; Bhanu Kumar Shastri vs Mohal Lal Sukhadia & Ors., ; at p. 543 and Harjit Singh Mann vs section Umrao Singh & Ors., ; at p. 510, referred to.


Input:
Civil Appeal No.1396 of 1974 From the Judgment and order dated 28.2.1973 of the Kerala High Court in I.T. Reference No. 84 of 1971.
T.S. Krishnamurthy Iyer, V.J. Francis and N.M. Popli for the Appellant.
S.Balakrishnan for the Respondent.
The Judgment of the Court was delivered by PATHAK J.
This appeal by special leave is directed against the judgment of the High Court of Kerala disposing of an Agricultural 163 Income tax Reference and answering the following question in favour of the assessee and against the Revenue: "Whether on the facts and circumstances of the case the Tribunal was justified in holding that the amount of Rs.33,747.09 is not agricultural income for the assessment year 1964 65." The assessees Kerala Estate Mooriad Chalapuram, is a broad description of seven persons possessing the status of tenants in common under the Kerala Agricultural Income tax Act, 1950.
They owned an estate from which they derived agricultural income liable to be assessed in the year 1963 64.
The assessees followed the mercantile system of accounting.
In assessment proceedings for the year 1963 64, the assessees claimed a deduction of Rs.33,747.09 from their agricultural income on the ground that it was payable towards interest on a loan of Rs.4,00,000 taken by them from M/s. Associated Planters Ltd., Calicut.
The deduction was allowed.
During the accounting period relating to the assessment year 1964 65 M/s. Associated Planters Ltd.waived payment of the interest of Rs.33,747.09, and accordingly the amount was credited to the revenue accounts of the assessees.
The assessing authority brought the amount to tax.
The case was ultimately carried in second appeal to the Tribunal on the question whether the sum of Rs.33,747.09 credited in the relevant previous year could be assessed to tax for the year 1964 65.
The Tribunal, by majority, held that it was not agricultural income.
As the instance of the Commissioner of Agricultural Income tax, Kerala, a reference was made to the High Court of Kerala under sub section
(2) of section 60 of the Kerala Agricultural Income tax Act on the question of law set forth earlier, and the High Court has answered the question in the affirmative.
The High Court has taken the view that it was immaterial that the assessees followed the mercantile system of accounting, because the case was not one of an actual or constructive receipt or any receipt at all but only one of remission.
According to the High Court a remission could not give rise to a credit item in the accounts of the assessees, and that what had been given up by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees.
The High Court observed that what was returned to the assessees had nothing to do with the activities of the assessees, and that it did not arise from the agricultural operations carried on by the assessees.
The Kerala Agricultural Income tax Act, 1950 provides for the 164 levy of tax on agricultural income in the State of Kerala.
Section 3 of the Act provides that agricultural income shall be charged for each financial year on the total agricultural income of the previous year of every person at the rates specified in the Schedule.
Section 4 defines what 'total agricultural income ' is, and s.5 details the deductions to be made in computing the agricultural income.
Clauses (e), (g), (h), and (i) of section 5 refer to interest paid by an assessee in different kinds of cases.
The interest in all these cases has to be deducted from the agricultural income of a person before the levy is imposed.
It is not disputed that the interest allowed to be deducted in the assessment of the present assessees falls under one of those clauses and was, therefore, rightly deducted in computing their agricultural income.
The question is whether the interest waived by M/s. Associated Planters Ltd. and credited to the revenue accounts of the assessees can be regarded as their agricultural income.
There has been serious controversy through the years on the question whether an amount refunded or remitted constitutes the income of an assessee.
In Commissioner of Income tax, Mysore vs Lakshmama, the Mysore High Court took the view that a refund received by the assessee in respect of excise fees payable by him amounted to a revenue receipt liable to tax.
In that case, however, the High Court specifically made a distinction between cases of refund and cases of remission, and it appears to have taken the position that an amount received as remission of duty could not be treated as a revenue receipt, while an amount received by way of refund could be.
In the judgment under appeal, the High Court of Kerala noticed that decision and after exhaustively surveying several decisions came to the conclusion that the remission in the present case could not amount to agricultural income.
We think that the view taken by the High Court in the case before us is right.
The remission cannot, in our opinion, be considered as amounting to the receipt of agricultural income.
What was allowed to be deducted from the total agricultural income of the assessees was interest pursuant to s.5 of the Act.
It was a deduction made permissible by the Act.
To be regarded as taxable in the hands of the assessees the amount which was the subject of remission must be capable of being described as agricultural income.
As the High Court has observed in the present case "what was returned to the assessee has nothing to do with the activities of the assessee, it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist.
" 165 In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922 sub section
(2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation.
Sub section (2A) was inserted in s.10 in 1955.
Before that Chagla, C.J., speaking for the Court in Mohsin Rehan Penkar vs Commissioner of Income tax, Bombay City, had observed: "It is impossible to see how a mere remission which leads to the discharge of the liability of the debtor can ever become income for the purposes of taxation".
This observation was noted by the Mysore High Court in C.I.T. vs Lakshmamma (supra), and appears from what was said by them to have received that tacit approval of the learned Judges.
It was made the basis of distinguishing the case before them from that decided by the Bombay High Court.
We may point out in regard to sub section
(2A) of section 10 of the Indian Income Tax Act, 1922 that it has been replaced by an even wider provision as sub section
(1) of section 41 of the Income Tax Act, 1961.
No provision of that nature finds place in the Kerala Agricultural Income Tax Act.
The appeal fails and is dismissed with costs.
M.L.A. Appeal dismissed.

Output:
The Kerala Agricultural Income Tax Act, 1950 provides for the levy of tax on agricultural income in the State of Kerala.
Section 5 details the deductions to be made in computing the agricultural income.
Clauses (e), (g), (h) and (i) refer to interest paid by the assessee in different kinds of cases.
The interest in all these cases, has to be deducted from the agricultural income of a person before the levy is imposed.
The respondents assessees claimed a deduction of Rs.33,747.09 from their agricultural income under section 5 of the Kerala Agricultural Income Tax Act 1950 towards interest on a loan of Rs.4 lakhs taken from a creditor.
The deduction was allowed.
However, in the next accounting period relating to the assessment year 1964 65, the said creditor waived payment of the interest of Rs.33,747,09 and accordingly the amount was credited to the revenue accounts of the respondents assessees.
The Assessing Authority brought the amount to tax.
But, the Tribunal as well as the High Court took the view that the case was not one of an actual or constructive receipt or any receipt at all but only one of remission and a remission could not give rise to a credit item in the accounts of the assessees and that what had been given by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees.
Dismissing the appeal of the Revenue, ^ HELD: (1) The view taken by the High Court is right.
The remis 162 sion cannot be considered as amounting to the receipt of agricultural income.
What was allowed to be deducted from the total agricultural income of the assesses was interest pursuant to section 5 of the Act.
It was a deduction made permissible by the Act.
To be regarded as taxable in the hands of the assessee, the amount which was the subject of remission must be capable of being described as agricultural income.
[164F G] In the instant case, what was returned to the assessees has nothing to do with the activities of the assessees; it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist.
[164G H] Commissioner of Income tax, Mysore vs Lakshmamma,[1964] , approved.
Mohsin Rehman Penkar vs Commissioner of Income tax, Bombay City,[1948] , referred to.
(2) In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922, sub s.(2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation.
Sub.s.(2A) of s.10 of the Indian Income Tax Act, 1922 has been replaced by an even wider provision as sub section
(1) of section 41 of the Income Tax Act, 1961.
No provision of that nature finds place in the Kerala Agricultural Income Tax Act.
[165A B;D]


Input:
ivil Appeal Nos. 410 and 520(N) of 1973.
From the Judgment and Decree dated 21/22/23.11.1972 of the Gujarat High Court in First Appeal Nos. 454 and 455 of 1970.
B.K. Mehta, D.N. Misra, J.B. Dadachanji & Co. and N.J. Modi, for the Appellants.
236 S.K. Dholakia, P.H. Parekh, J.H. Parekh, Ms. Sunita Sharma, Krishan Kumar, Vimal Dave and H.J. Javeri, for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
These appeals are directed against the deci sion of the Gujarat High Court in an appeal arising out of a suit for partition instituted by the respondent No. 1, Vadilal Bapalal Modi (since deceased).
The father of the plaintiff Vadilal was Bapalal who had 5 sons the plaintiff, Ramanlal, Gulabchand, Kantilal and Jayantilal; and a daughter Champaben.
Gulabchand was impleaded as the first defendant in the suit and on his death his heirs and legal representatives have been substi tuted.
Kantilal and Champaben are defendants No. 2 and 3 respectively.
Ramanlal predeceased Bapalal and his wife and son are defendants No. 4 and 5.
Jayantilal also died earlier and his wife Smt.
Chandrakantaben, defendant No. 6 is the appellant in Civil Appeal No. 418 of 1973.
Their children are defendants No. 7 to 12.
CiviI Appeal No. 520 of 1973 has been preferred by the 7th defendant, Narendra.
The suit by VadilaI was instituted in 1960, claiming share in the considerably large properties detailed in the Schedule to the plaint, but the present appeals are not related to any other item excepting the property described as a chawl admeasuring 7 acres and 2 gunthas of land with 115 rooms and huts, situated in the Naroda locality in Ahmedabad under Lot No. 8 of the plaint which has been referred to by the counsel for the parties before us as the chawl or the Naroda chawl.
According to the case of the defendants No. 6 to 12, this property exclusively belongs to defendant No. 6 and is not liable to partition.
The other defendants contested the claim of the plaintiff with respect to some other items, but so far the disputed chawl is con cerned, they supported the plaintiffs ' case that it belonged to the joint family and is liable to partition.
The land of Lot No. 8 was acquired by Bapalal in 1932 for a sum of Rs.9,450 and the rooms were constructed thereon in about 1934.
It has been held by the High Court, and the finding has not been challenged before us, that Bapalal acquired the property and built the chawl with the aid of ancestral joint funds, and the property, therefore, belonged to the family.
According to the case of the defendants 237 No. 6 to 12, Bapalal orally gifted the property to his daughter in law Chandrakanta the 6th defendant, in March, 1946 and made a statement before the Revenue authorities on the basis of which her name was mutated, and she was put in possession thereof.
Admittedly 114 rooms in the Naroda chawl had been let out to tenants, and one room was retained for the caretaker.
According to Chandrakanta 's case, although she came in peaceful possession, the management which in cluded realisation of rent was in the hands of Gulabchand (defendant No. 1).
It appears that in 1952 some dispute arose and Chandrakanta assumed direct charge of the Naroda chawl and has remained in possession thereafter.
Thus she has been in exclusive possession of the disputed chawl since 1946, and acquired good title therein by adverse possession before the suit was filed in 1960.
The learned Judge, City Civil Court, Ahmedabad, who tried the suit, held that BapalaI and his sons constituted a joint Hindu family and the business carried on by Bapalal was for the benefit of the family and the income from the business was thrown in the common pool and all the proper ties including the disputed chawl were treated as belonging to the family.
Proceeding further it has been found that the case of the defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was correct.
She was accordingly held to have acquired a title by adverse possession.
The suit, therefore, was dismissed with respect to the disputed chawl.
For the purpose of the present appeal it is not essential to mention the findings of the trial court relating to the other items of the suit property.
The plaintiff appealed before the Gujarat High Court.
Some of the defendants also filed two separate appeals against the judgment of the trial court dealing with other items of property with which we are not concerned.
The appeals were heard and disposed of to gether by a common judgment in November 1972.
The High Court reversed the finding of adverse possession in regard to the disputed chawl and granted a decree for partition.
It was held that the defendant No. 6 remained in exclusive posses sion of the property only since 1952 and the period was thus short of the time required for prescription of title.
Deal ing with the relief for rendition of accounts, the Court held that since the rents of the chawl from 1952 were col lected by Jayantilal, Chandrakanta 's husband and after his death by her son Narendra (defendant No. 7), Chandrakanta was liable to render accounts till the death of her husband and she along with defendant No. 7 would be jointly liable for the period thereafter.
The present appeals are directed against this judgment.
238 5.
According to the case of the defendant No. 6, her husband, Jayantilal, used to indulge in speculative business and he was, therefore, not considered a dependable person.
To ensure economic stability of Chandrakanta and her chil dren, her father in law, Bapalal decided to make a gift of the Naroda chawl to her.
Both Bapalal and Chandrakanta appeared before the Talati of Naroda on 5.3.1946 and made statements.
The original statement of Bapalal recorded by the Talati and signed by Bapalal was produced and marked as Ext.
268 in the trial court and similarly the statement of Chandrakanta as Ext.
Bapalal has stated in Ext.
268 that Chandrakanta had loyally served him and, therefore, he was making the gift.
A prayer was made for substitution of her name in the revenue records.
A similar prayer was made by the lady in Ext.
The extract from the Record of Rights is Ext.
247 which mentions Bapalal as the occupant of the Naroda chawl.
The entry was made in May 1933.
This entry appears to have been placed within brackets and a second entry inserted mentioning Chandrakanta 'wife of Jayantilal Bapalal '.
Mr. B.K. Mehta, the learned counsel for the appel lant has strongly relied upon the revenue entry as proof of her title.
Reference was made to the decision in Gangabai and others vs Fakirgowda Somaypagowda Desai and others, A.I.R. 1930 Privy Council 93; and Desai Navinkant Kesarlal vs Prabhat Kabhai, 9 Gujarat Law Reporter 694.
It was point ed out by the learned counsel that in the Privy Council case also the revenue records, which were under consideration, were prepared under the Bombay Land Revenue Code, that is the same Code under which Ext.
247 was prepared and it was observed in the judgment that the revenue entry furnished presumptive evidence of title.
The Gujarat case also indi cated that a presumption as to the rights in the concerned property arose in favour of the person whose name was en tered.
We are not very much impressed by this part of argu ment of the learned counsel as it cannot be denied that title to Naroda chawl could not have passed to the defendant No. 6 by virtue of the entry Ext.
The value of the chawl even in 1946 was large and no registered instrument of transfer was executed.
Besides Ext.
247 describes Bapalal and thereafter Chandrakanta as Kabjedar, that is, occupant.
In these circumstances the presumption which can be raised in favour of Chandrakanta from this entry is with respect to her possession and possession only.
There is a serious dispute between the parties as to the actual physical possession of the chawl during the period 1946 to 1952 and we will have to consider the evi dence on this aspect in some detail.
In 1952 there was direct confrontation between Chandrakanta and the defendant No. 1, Gulabchand.
On 14.4.1952 a public notice was 239 published in a local daily named 'Sandesh ' vide Ext.
254 wherein Gulabchand informed and called upon the tenants in the chawl to pay the rent to him within 3 days against receipts to be issued, failing which legal steps would be taken against them.
On the very next day 'Sandesh ' carried another public notice Ext.
255 issued by Chandrakanta as serting her title and exclusive possession and repudiating the claim of Gulabchand.
The tenants were warned that Gulab chand or any other person on his behalf had no right or authority to dispute her claim.
On the same day, i.e., on 15.4.1952 another public notice was published in 'Sandesh ' at the instance of Gulabchand reiterating his claim and asserting that his father Bapalal (who was then alive) was the owner.
It appears that no further action was taken by any of the parties.
The evidence on the record shows that Bapalal had withdrawn himself from wordly affairs and was staying in Vrindavan near Mathura.
The evidence led by Chandrakanta of her exclusive possession from 1952 through her husband and son till the date of the suit was accepted as reliable by the High Court.
Thus there is concurrent finding of both the two courts below accepting her exclusive possession from 1952 onwards.
The learned counsel for the plaintiff has, therefore, rightly not challenged before us this finding which we are independently also satisfied is a correct one.
The actual position of the chawl from 1946 to 1952 becomes crucial, as Chandrakanta is bound to fail if she is not successful in proving her adverse possession for this period.
As has been stated earlier, the suit was filed in 1960 and her possession since 1952 cannot be treated long enough for a prescriptive title to accrue.
The parties have, therefore, taken great pains to prove before us their rival cases as to the possession of the chawl from 1946 to 1952.
The defendant No. 1 was admittedly managing the properties belonging to the family.
Out of 115 rooms in Naroda chawl only 114 were let out to tenants and one room was retained in which, according to the case of Chandrakan ta, a caretaker known as Gangia Pathan, engaged by Bapalal, was staying.
After collecting the rent from the tenants the Pathan used to hand over the money to the defendant No. 1.
After the gift, it was decided that the same arrangement would continue but the defendant No. 1 would be managing the property on her behalf and after receipt of the rent he would deliver the same to her.
She claims that this arrange ment was acted upon.
Admittedly the total rent collection from the chawl was not large and after deducting the ex penses including the maintenance and repair costs and the salary of the Jamadar (caretaker) the money left was not a considerable sum.
240 According to the evidence of Chandrakanta the Pathan left the service and his whereabouts are not known and another Jamadar with the name of Maganji came in his place.
He looked after the chawl till 1950.
Thereafter he was substi tuted by Nathu Singh.
Maganji 's present whereabouts are also not known.
In 1952 Gulabchand made a claim to the chawl repudiating the ownership of Chandrakanta and he was, there fore, removed.
The appellant has relied on a large number of rent receipts filed by her and her learned counsel laid great stress on five of them which have been marked as Exts.
240 to 243 and 250 issued in December 1947, January 1948, June 1948 April 1949 and July 1947 respectively.
It is signifi cant to note that the defendant No. 1 was in charge of the collection of the rent upto 1952 according to the case of all the parties.
The parties contesting the claim of the appellant contend that he was so doing on behalf of the entire family and not on behalf of Chandrakanta as claimed by her.
The defendant No. 1, however, did not choose to enter the witness box nor did he produce any document which could have supported his case.
The counter foil receipts were in his possession and neither they were filed by the defendant No. 1 nor the plaintiff called for the same.
Defendant No. 6 was able to examine two of the tenants Vajesingh (D.W. 1) and Nathaji (D.W. 2).
They filed a large number of receipts issued to them evidencing payment of rent.
The list of documents filed by them are printed on pages 394 to 395 of the paper book and have been marked as Exts. 237 and 239.
12 receipts in the list Ext.
237 are for the period 1.6.1946 to 30.5.1949 and 7 of the list Ext.
239 are from 1.1.1947 to 30.9.1949.
They support the case of Chandrakanta inasmuch as on the top of these receipts are printed the following words: " CHAWL OF BAI CHANDRAKANTA THE WIFE OF MODI JAYANTILAL BAPALAL" Out of them the receipts Exts.
240 to 243 were admittedly issued when the defendant No. 1 was incharge of collection of rent and it is not denied that they were issued at his instance during the crucial period.
The other receipt Ext.
250 was issued for the period 1.6.1947 to 1.7.1947 under the signature of the plaintiff Vadilal and this also similarly carried the description of the chawl as belonging to Chan drakanta.
No explanation is forthcoming on behalf of either the defendant No. 1 or the plaintiff as to how they were issuing receipts of the above description.
241 11.
From the evidence it appears that although defendant No. 1 was in charge of the management of the chawl during 1946 to 1952, the actual collection from the individual tenants was made by the Jamadar (caretaker) who generally signed the receipts and handed over the collected amount to the defendant No. 1.
The tenant Nathaji (D.W. 2) has said that Maganji Jamadar used to prepare the receipts.
It has been argued before us on behalf of the plaintiff that the receipts were filed after the examination of the plaintiff was over and so he could not explain the same, specially the one receipt issued under his signature.
It is significant to note that the cases of the plaintiff, the defendant No. 1 and the other defendants excepting defendants 6 to 12 are common so far the Naroda chawl was concerned and the turn of these defendants leading evidence at the trial of the suit came later.
The evidence of Chandrakanta was closed on 29.9.1964 and the witnesses for the defendant No. 1 were examined on 20.10.1964.
Besides, the plaintiff could have re examined himself if he had any explanation to offer.
The cross examination of D.W. 2 on his behalf also indicates that no suggestion to the witness by way of explanation was made.
In his evidence plaintiff stated that he was also collecting the rent from the different tenants in chawl at the instance of defendant No. 1 and he used to hand over the collections to him.
He admitted the fact that there were counter foils which ramained with the defendant No. 1.
The High Court while examining this aspect accepted and relied on Ext.
250 signed by the plaintiff, but failed to appreci ate the significance of the description of the Naroda chawl on the receipt as the property of the defendant No. 6.
Similar is the position of the defendant No. 1 who did not come to the witness box at all.
Chandrakanta examined her self as D.W. 3 and supported her case.
Although there are some minor discrepancies in her deposition, the same is consistent with the documents and the circumstances in the case and appears to be reliable.
While reversing the finding of the trial court that Chandrakanta was in exclusive possession of the chawl not only from 1952 onwards but even earlier since 1946, the High Court was mainly impressed by three items of the evidence, namely, i)certain account books claimed to be the books at the joint family, ii) several IncomeTax returns filed by the defendant No. 1, and iii) a document of agreement, Ext.
So far the Income Tax papers are concerned, they are of the period after 1952 and it has already been stated earlier that the High Court has agreed with the trial court that since 1952 the defendant No. 6 was in adverse possession of the chawl.
In view of this finding, with which we fully agree, the Income Tax documents do not 242 have any impact, except showing that the author of these returns was falsely including income therein which did not accrue to the family.
So far the account books and the deed of agreement are concerned, it will be necessary or appreci ating their true nature and impact on this case, to consider some more facts.
The account books were produced by the defendant No. 1 within a list of documents, Ext. 123.
The defendant No. 1, however, did not lead any evidence with respect to the same when his turn at the trial came.
As mentioned earlier, he personally avoided the witness box, but examined some wit nesses who did not attempt either to prove the books or speak about their authenticity.
The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross examination.
Some of the books were shown to him and he admitted that they were in his hand writing, but immediately added; "I have written them as per the instructions of defendant No. 1 and as directed by him.
They are maintained from month to month.
" The income from the Naroda chawl which was admittedly very small as compared to the vastness and the present value of the property, was included in the account books.
According to the case of the respondent the books are authentic, and disclosed the true state of affairs.
There was considerable discussion at the bar before us as well as before the High Court as is apparent from the judgment under appeal, relat ing to the law of evidence dealing with account books.
Reliance was placed on Sec.
34 of the which provides that entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire.
It has been contended on behalf of the respondents that since the plaintiff stated that the books were being maintained from month to month the requirement of law was satisfied.
Mr. Mehta, the learned counsel for the appellant argued that apart from the formal proof of the execution of the docu ment, the party relying thereon was under a duty to lead evidence in support of the correctness of the entries in the books which is completely lacking here.
Besides, it was pointed out that the relevant books are merely joint khata bahis of Samvat 2005 to 2006 equivalent to 1948 to 1949 without the support of primary evidence of the cash books.
, ,The other relevant documents which are admittedly in pos session of the defendant No. 1 have not been produced, including the account books of other years during the cru cial 243 period, the Income tax returns and assessment orders for the period 1946 to 1952 and the counter foil rent receipts.
It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries in the account books.
When they were produced in Court the plaintiff filed his objection as per his purshis, Ext. 172 (page 368 of the paper book).
Many of the documents produced by the defendant No. 1 were accepted, but the account books which were serial nos.
123 75 to 123 97 of the list Ext.
123 were in express terms not admitted.
The plain tiff said that they might be exhibited, but subject to his objection.
The defendant No. 6 also filed her objection as per the purshis Ext.
The plaintiff did not make any statement supporting the books in his examination in chief and only in reply to the question of the cross examining lawyer of the defendant No. 1, he stated as mentioned earli er.
It is significant to note that by saying that he had written as per the instructions of the defendant No. 1 he made it clear that he could not vouchsafe for their reli ability.
In spite of this situation, the defendant No. 1 could not sommon courage to support them either personally or through any witness.
No reason has been suggested at all on his behalf as to why he did not produce the other impor tant documents in his possession which would have supported the account books and the joint case of the parties resist ing the appellants ' claim.
In view of all these circum stances we have no hesitation in rejecting the account books as not reliable.
So far Ext.
167 is concerned, the High Court has relied upon it as the Naroda chawl has been treated by the document as belonging to the joint family.
It was executed on 24.10.1954 by the plaintiff and his three brothers but not by Jayantilal, the husband of defendant No. 6, although he is also shown as a party thereto.
The brothers appear to have settled their dispute with respect to different items of property and the disputed Naroda chawl is shown as the seventh item in the list of properties.
Although the four brothers personally signed the document, so far Jayantilal 's branch was concerned the signature of Narendra, defendant No. 7, who was a minor then, was taken.
Reliance has been placed on the attestation of Bapalal, the father of the executants.
Two days earlier, i.e., on 22.10.1954, he had executed a release deed, Ext.
222 giving up his right in the family properties for a sum of money named therein.
He was already staying in Vrindavan for sometime past and proposed to spend the rest of his life there.
The release deed, however, did not contain any list of properties and the document, therefore, is not of any help to either side.
SOl far the 244 agreement Ext.
167 is concerned, it has not been stated by anybody that Bapalal went through its contents or that somebody read the same to him before he attested it.
There is no presumption that an attesting witness of a document must be assumed to be aware of its contents.
What is signif icant, however, is that it was executed in 1954 when the defendant No. 6 was in adverse possession to the exclusion of the defendant No. 1 and the other members of the family, and Jayantilal did not join the document and his brothers chose to get the signature of his minor son.
This is con sistent with their dishonest attempt to include the income from the chawl in the Income Tax returns of the period after 1952, when the defendant No. 6 undoubtedly was in exclusive possession.
As has been stated earlier, in 1952 there was a direct confrontation between them on the one hand and the defendant No. 6 on the other, when public notices were published in 'Sandesh '.
If their case about their earlier possession had been true they would have produced their Income Tax returns and the assessment orders of that period, i.e. 1946 to 1952.
The family was possessed of vast proper ties and was paying Income Tax.
The entire circumstances lead to the irresistible conclusion that after the defendant No. 1 was removed by the defendant No. 6 from the management of the disputed Naroda chawl he and the other members of the family started creating evidence in support of their false claim.
We do not in the circumstances place any reliance on this deed of agreement.
So far the oral evidence in the case is concerned, the plaintiff, Vadilal examined himself as a witness, but was not supported by any other member of the family, al though his brothers, Gulabchand and Kantilal, defendants 1 and 2 respectively, were alive when the case was heard in the trial court.
Even his nephew, Rajnikant, defendant No. 5, son of deceased Ramanlal did not prefer to come to the witness box.
The husband of the defendant No. 6, Jayantilal had died in 1956, i.e., about 3 4 years before the institu tion of the suit.
Chandrakanta examined herself in support of her case and was cross examined at considerable length.
Her son, Narendra defendant No. 7, who was minor in 1954 when Ext.
167 was executed, was also examined as a witness.
After the death of his father, Jayantilal in 1956, he start ed collecting the rent of the chawl, and as stated earlier both the courts have concurrently held in favour of the exclusive possession of the defendant No. 6 from 1952 on wards.
The plaintiff, however, claimed that the chawl was in the possession of the family even later than 1952.
We have been taken through his evidence and the evidence of Chandra kanta in extenso by the learned counsel for the parties, who made long comments thereon during their arguments.
Both the judg 245 ments of the trial court and the High Court have discussed the evidence at length and we do not consider it necessary to once more deal with them in detail.
We agree with the reasons given by the trial court for accepting the case and the evidence of the defendant No. 6 and rejecting the plain tiff 's oral evidence and the case of the respondents.
The plaintiff contradicted himself so seriously during his examination that at one stage he had to expressly admit that several of the statements made in his examination in chief were 'false ' (see paragraph 25).
It was demonstrated by the further cross examination that he had made many more incor rect statements.
On the other hand, Chandrakanta 's evidence is far superior.
Although she also made some inconsistent statements, but the discrepancies did not relate to any matter of vital importance.
Her evidence substantially is reliable and is supported by important circumstances of (i) the mutation of her name in place of Bapalal on the basis of a statement of the latter; (ii) the description of the chawl as belonging to her on the printed rent receipts given to the tenants out of which some were issued by the defendant No. 1 and the plaintiff, and (iii) the suppression of vital materials in possession of the defendant No. 1 which were withheld from the Court.
The conduct of the parties in not filing the suit before 1960 is also consistent with the correctness of her case.
When the defendant No. 1 was effec tively removed from the management of the property by the defendant No. 6 in 1952, Bapalal was alive.
The defendant No. 1 as also the other members of the family contesting her claim kept quiet and did not risk starting a litigation during his life time.
Even in 1960 it was the plaintiff and not the defendant No. 1 who instituted the present suit in which he included the Naroda chawl in the schedule of properties to be partitioned.
The defendant No. 1 was manag ing the affairs of the family, but did not take any steps to dislodge the defendant No. 6 from the chawl.
The impugned judgment indicates that there were serious differences between the plaintiff and the defendant No. 1 on other items of property and the main reason for the plaintiff to file the suit does not appear to be his claim to the Naroda chawl.
We do not consider it necessary to reiterate the other reasons given in the trial court judgment in support of the decision in favour of the appellant, with which we agree.
We, therefore, hold that the defendant No. 6 remained in exclusive adverse possession of the disputed Naroda chawl right from 1946 onwards till the suit was filed in 1960.
Mr. Dholakia, the learned counsel for the contesting respondents contended that since the chawl has remained in actual possession of the tenants, Bapalal or the family must be held to be in symbolic 246 possession in 1946 and for that reason the defendant No. 6 also can not be treated to have come in actual possession of the property, which could have permitted her to prescribe a title in the chawl.
The learned counsel further argued that since the defendant No. 1 and the plaintiff were actually collecting rent from the tenants they also must be held to be in joint possession and, therefore, the defendant no. 6 can not succeed as she has not been able to prove their ouster.
The other members of the joint family will also be entitled to rely on this aspect so as to successfully defend their right.
Reliance was placed on the decision of the Patna High Court in Hari Prasad Agarwalla and another vs Abdul Haq and others, A.I.R. 1951 Patna 160; in support of the argument that for adverse possession actual physical possession is necessary and mere constructive possession is not sufficient.
We are afraid, it is not possible to accept the argument.
The subject matter of dispute in the present case is the title to the chawl as the owner landlord subject to the tenancy of the tenants in possession.
Neither the plaintiffs nor the defendants are claiming the actual physical posses sion of the chawl by eviction of the tenants.
Any reference to the actual physical possession of the tenant is, there fore, wholly irrelevant for the purpose of the present controversy.
It has to be remembered that the title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned," . or any interest therein".
These words were retained in Article 65 of the new Limitation Act.
It is true that it is the intention to claim exclusive title which makes possession adverse and this animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property.
The manner of possession depends upon the kind of possession which the particular property is susceptible.
That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner 's possession.
In the present case the parties have been fighting for the rent from the chawl so long as it continues in possession of the tenants.
Before the gift of 1946 the defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952.
The appellant has, however, established her case that the defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the manage ment of the chawl.
Since 1946 the tenants attorned to the defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the defendant No. 1.
The actual physical possession of the tenants in 247 the circumstances would enable the appellant to establish her prescriptive title.
The decision in Uppalapati Veera Venkata Satyanarayanaraju and another vs Josyula Hanumayamma and another, , indicates that if a tenant makes an attornment in favour of a person who is not the true owner and follows and paying the rent to him, such a person must be held to have effective possession.
The land lord must be deemed to be in possession through his tenant is also demonstrated by another illustration.
If the tenant trespasses over the neighbour 's land treating it to be covered by his tenancy and remains in possession for the requisite period so as to prescribe a title thereto, his interest therein is limited to the interest of the tenant and his landlord acquires the title of the owner.
The con duct of such a tenant has been aptly described as stealing for the landlord (see I.L.R. 10 Calcutta 820 and The fact that the tenants have been in actual physical possession of the chawl is, in the circumstances, of no assistance to the respondents.
What is material is that they paid the rent to the defendant No. 6. 19.
There is no merit in the further argument that the defendant No. 1 must be treated to be in joint possession as he was actually collecting the rent from the tenants.
It is well settled that the possession of the agent is the posses sion of the principal and in view of the fiduciary relation ship the defendant No. 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyeii vs John Lawson Kennedy, [1889] XIV H.L. (E) 437, where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse posses sion and limitation.
The plaintiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respondent for himself, or on his own behalf, anymore than during her life time".
Emphasing the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, L.R. XII Equity Cases 149, arising out of the circumstances similar to the present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
248 The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts.
The claim of the plaintiff was dismissed on the plea of adverse possession.
Lord Romil ly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the posi tion of the agent or his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes".
The agent had thus lost his title by reason of his own possession as agent of the principal.
A similar situation arose in Secretary of State for India vs Krishna moni Gupta, 29 Indian Appeals 104, a case between lessor and lessee.
There the proprietors of the land in dispute, Mozum dars were in actual physical possession but after getting a settlement from the Government in ignorance of their title.
The Government contended that the possession of the Mozum dars was, in circumstances, the possession of the Government claiming the proprietory right in the disputed land and that such possession was in exclusion and adverse to the claim of the Mozumdars to be proprietors thereof.
The plea succeeded.
It was observed by the Judicial Committee.
"It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession, and estopped from disputing the title of the Government.
But there is no doubt that the possession of the tenant is in law the posses sion of the landlord or superior proprietor, and it can make no difference whether the tenant be one who might claim adversely to his landlord or not.
Indeed, in such a case it may be thought that the adverse character of the possession is placed beyond controversy.
" We are, therefore, of the view that the defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent defendant No. 1 and thereafter through her husband, Jayantilal and son, defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years.
For the reasons mentioned above, the decision of the High Court must be held to be erroneous.
Consequently the decrees for accounts against the defendants No. 6 and 7 must also go.
Accordingly, the appeals are allowed, the decision of the High Court, so far 249 the subject matter of the present appeals is concerned, is set aside and that of the trial court restored.
In view of the close relationship of the parties and the other circum stances, the parties are directed to bear their own costs throughout.
N.V.K. Appeals allowed.

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Respondent No. 1 in the appeals instituted a suit for partition against his younger brothers and sisters, and the heirs of his deceased brothers.
The plaintiff was the eldest among the brothers and sisters.
The 1st and 2nd Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the third brother.
Defendant 6 was the widow of the fourth brother, and Defendants 7 to 12 were his children, while Defendant No. 14 was the wife of Defendant No. 1, and Defendants 13, 15, 16 and 17 were their children.
The subject matter of the appeals related only to one item of property known as "Naroda Chawl" measuring 7 acres and 2 gunthas of land, where 115 rooms and huts stood con structed, out of which 114 rooms had been let out to ten ants, and one room was retained for the caretaker.
According to Defendants No. 6 to 12 this property exclu sively belonged to defendant No. 6 and was not liable to partition.
The other defendants however supported the plain tiff 's case that it belonged to the 233 joint family and was liable to partition.
Defendants 6 to 12 pleaded that the plaintiff 's father Bapalal orally gifted this property to his daughter in law Defendant No. 6 in March 1946 and made a statement before the Revenue authorities on .
the basis of which her name was mutated and she was put in possession thereof, that although she came in peaceful possession, the management which in cluded realisation of rent was in the hands of Defendant No. 1, that as some dispute arose in 1952 she assumed direct charge of the chawl and had remained in possession thereaf ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960.
The City Civil Judge who tried the suit, held that there was a joint Hindu family and a business was carried on for the benefit of the family and the income therefrom was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the family.
As the case of Defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired title by adverse possession, and the suit was dismissed with respect to the disputed chawl.
The plaintiff appealed to the High Court.
Some of the defendants also filed appeals in respect of the other items of property.
All these appeals were heard and disposed of by a common judgment.
The High Court reversed the finding of adverse posses sion in regard to the disputed chawl and granted a decree for partition.
It held that Defendant No. 6 remained in exclusive possession of the property only since 1952, the period was thus short of the time required for prescription of title.
It further held that since the rents of the chawl from 1952 were collected by her husband and after his death by her son (Defendant No. 7), she was liable to render accounts till the death of her husband, and she along with Defendant No. 7 would be jointly liable for the period thereafter.
Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court.
Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court.
234 HELD: 1.
The principle that revenue entry furnishes presumptive evidence of title is inapplicable in the instant case.
It cannot be denied that title to Naroda Chawl could not have passed to Defendant No. 6 by virtue of the entry Ext.
The value of the chawl even in 1946 was large and no registered instrument of transfer was executed.
Besides Ext.
247 describes the plaintiff 's father (Bapalal) and Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu pant.
In such circumstances, the presumption which can be raised in favour of Defendant No. 6 from this entry is with respect of her possession and possession only.
[238F G] Gangabai and others vs Fakirgowda Somaypagowda Desai and others, AIR 1930 Privy Council 93; and Desai Navinkant Kesarlal vs Prabhat Kabhai, 9 Gujarat Law Reporter 694, referred to.
The account books have to be rejected as not reli able.
It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries therein.
Many of the documents produced by Defendant No. 1 were accepted, but the account books which were section Nos.
123 75 to 123 97 of Ext.
123 were in express terms not admitted.
The plaintiff filed his objection Ext.
Defendant No. 6 also filed her objection Ext.
The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross exami nation.
The plaintiff by saying that he had written as per the instructions of Defendant No. 1 made it clear that he Could not vouchsafe for its reliability.
Defendant No. 1 could not summon courage to support them either personally or through any witness.
No reason has been suggested as to why he did not produce other important documents in his possession which could have supported the account books and the joint case of the parties resisting the appellant 's claim.
[243B E] 3.
Defendant No. 1 cannot be treated to be in joint possession as he was actually collecting the rents from the tenants.
it is well settled that the possession of the agent is the possession of the principal and in view of the fidu ciary relationship, Defendant No. 1 cannot be permitted to claim his own possession.
[247D E] David Lyeii vs John Lawson Kennedy, [1889] XIV H.L.(E) 437; Williams vs Pott, L.R. XII Equity Cases 149 and Secre tary of State for India vs Krishnamoni Gupta, 29 Indian Appeals 104, referred to.
It is the intention to claim exclusive title which makes 235 possession adverse and this animus possidendi must be evi denced and effectuated by the manner of occupancy which again depends upon the nature of the property.
The manner of possession depends upon the kind of possession which the particular property is susceptible.
That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner 's possession.
[246E F] (b).
The title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned, ".
or any interest therein".
[246E] In the instant case, the parties have been fighting for the rent from the chawl so long as it continued in posses sion of the tenants.
Before the gift of 1946 the Defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952.
The appellant has, however, estab lished her case that the Defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl.
Since 1946 the tenants attorned to the Defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the Defendant No. 1.
The fact that the tenants have been in actual physical posses sion of the chawl is, in the circumstances, of no assistance to the respondents.
What is material is that they paid the rent to the Defendant No. 6.
Defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent Defendant No. 1 and thereafter through her husband and son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years.
[246G H; 248G] Uppalapati Veera Venkata Satyanarayanaraju and another vs Josyula Hanumayamma and another, and Hari Prasad Agarwalla and another vs Abdul Haw and others, A.I.R. 1951 Patna 160, referred to.


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Civil Appeal Nos.
1768 1769/ 72.
Appeals by Special Leave from the Judgment and order dated 15 7 1971 of the Delhi High Court in Sales Tax Reference No. 8 of 1969.
F. section Nariman, (In CA 1768/72), V. section Desai (in C.A. 1769).
M. C. Bhandare (C.A. 1768/72) and Mrs. section Bhandare and Miss M. Poduval for the Appellants.
P. A. Francis, R. N. Sachthey and Miss A. Subhashini for the Respondent.
Y. section Chitale, Vinay.
Bhasin, A. K. Srivastava and Vineet Kumar for the Interveners.
The Judgment of the Court was delivered by PATHAK, J.
This and the connected appeal are directed against the judgment of the High Court of Delhi disposing of a reference made to it under section 21(3) of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi on the following question: "Whether the service of meals to casual visitors in the Restaurant is taxable as a sale: (i) when charges are lumpsum per meal or (ii) when they are calculated per dish ?" The High Court has answered the question in the affirmative.
The appellant runs a hotel in which lodging and meals are provided on "inclusive terms" to residents.
Meals are served to non residents also in the restaurant located in the hotel.
In the assessment proceedings for the assessment years 1957 58 and 1958 59 under the Bengal Finance (Sales Tax) Act, 1941, the appellant contended that the service of meals to residents and non residents could not be regarded as a sale and therefore sales tax could not be levied in respect thereof.
The contention was rejected by the Sales Tax authorities, who treated a portion of the receipts from the residents and nonresidents as representing the price of the foodstuffs served.
At the instance of the appellant, the High Court called for a statement of the case on two questions.
One was whether the supply of meals to residents, who paid a single all inclusive charge for all services in the 559 hotel, including board, was exigible to sales tax.
The second was the A question set forth above.
The High Court answered the first question in favour of the appellant and the second against it.
And now these appeals by special leave.
Tax is payable by a dealer under section 4 of the Bengal Finance (Sales Tax) Act, 1941 on sales effected by him, and the expression "sale ' has been defined by section 2 (g) of the Act to mean "any transfer of property in goods for cash or deferred payment or other valuable consideration including a transfer of property in goods involved in the execution of a contract. ".
The question is whether in the case of non residents the service of meals by the appellant in the restaurant constitutes a sale of foodstuffs.
It appears to us that after the view taken by this Court in State of Punjab vs M/s Associated Hotels of India Ltd.,(1) the approach to the question before us is clearly indicated.
This is a case where the origin and historical development of an institution as profoundly influenced the nature and incidents it possesses in law.
In the case of an hotelier this Court proceeded on the footing that his position in law was assimilable to that of an inn keeper.
At common law an innkeeper was a person who received travellers and provided lodging and necessaries for them and their attendants and employed servants for this purpose and for the protection of travellers lodging in his inn and of their goods(2).
It was hospitality that he offered, and the many facilities that constituted the components of that hospitality determined the legal character of the transactions flowing from them.
Long ago, in Crisp vs Pratt(3) it was pointed out that innkeepers do not get their living by buying and selling and that although they buy provisions to be spent in their house, they do not sell them but what they do is to "utter" them.
"Their gain", it was added, "is not only by uttering of their commodities, but for the attendance of their servants, and for the furniture of their house, rooms, lodgings, for their guests. '`.
This test went to the root and we find it repeated in Parker vs Flint.(4) In Newton vs Trigg(5) Holt, C.J., defined the true status of an inn keeper by reference to the services afforded by him? that he was an "hospitator", and was "not paid upon the account of the intrinsic value of his provisions, but for other reasons: the recompence he receives, is for care and pains and for protection and security. . but the end of an inn keeper in (1) ; (2) Halsbury 's Laws of England, 3rd Edn.
21 p. 442 paras 932.
(3) [1639] Cro. Car. 549.
(4) [1699] 12 Mod 254.
(5) 3 Mod .
2 549SCI/78 560 his buying, is not to sell, but only a part of the accommodation he is bound to prepare for his guests.
" And for the purpose of the question before us is would be relevant to quote Professor Beale(1): As an inn keeper does not lease his rooms, so he does not sell the food he supplies to the guest.
It is his duty to supply such food as the guest needs, and the corresponding right of the guest is to consume the food he needs, and to take no more.
Having finished his meal, he has no right to take food from the table, even the uneaten portion of food supplied to him, nor can he claim a certain portion of good as his own to be handed over to another in case he chooses not to consume it himself.
The title to food never passes as a result of an ordinary transaction of supplying food to a guest." Having proper regard to those particular considerations, it is not surprising that the principle was extended in England to the service OF food at eating places or restaurants.
The keeper of an eating house, or victualler, was regarded fundamentally as providing sustenance to those who ordered food to eat in the premises.
That eminent and learned Judge, Lord Mansfield, saw no distinction, in Saunderson vs Rowles(2), between an innkeeper and a victualler.
He observed: '.
The analogy between the two cases of an inn keeper and a victualler is so strong that it cannot be got over.
And we are all clear that this man (victualler) is not within these laws; upon the authority of a determined case of an inn keeper, and also upon the reason of the thing.
He buys only to spend in his house, and when he utters it again it is attended with many circumstances additional to the mere selling price.
" Like the hotelier, a restaurateur provides many services in addition to the supply of food.
He provides furniture and furnishings, linen, crockery and cutlery, and in the eating places of today he may add music and a specially provided area for floor dancing and in some cases a floor show.
The view taken by the English law found acceptance on American soil, and after some desultory dissent initially in certain states it very soon became firmly established as the general view of the law.
The first edition of American Jurisprudence sets(3) forth the statement of the law in that regard, but we may go to the case itself, Electa B. Merrill vs James W. Hodson(4), from which the (1) Innkeepers & Hotels, para 169.
(2) (3) Vol.
46 p. 207 para 13.
(4) 561 statement has been derived.
Holding that the supply of food or drink A to customers did not partake of the character of a sale of goods, the Court commented: "The essence of it is not an agreement for the transfer of the general property of the food or drink placed at the com command of the customer for the satisfaction of his desires, or actually appropriated by him in the process of appeasing his appetite or thirst.
The customer does not become the owner of the food set before him, or of that portion which is carved for his use, or of that which finds a place upon his plate, or in side dishes set about it.
No designated portion becomes his.
He is privileged to eat, and that is all.
The uneaten food is not his.
He cannot do what he pleases with it.
That which is set before him or placed at his command is provided tc enable him to satisfy his immediate wants, and for no other purpose.
He may satisfy those wants; but there he must stop.
He may not turn over unconsumed portions to others at his pleasure, or carry away such portions.
The true essence of the transaction is service in the satisfaction of a human need or desire, ministry to a bodily want.
A necessary incident of this service or ministry is the consumption of the food required.
This consumption involves destruction, and nothing remains of what is consumed to which the right of property can be said to attach.
Before consumption title does not pass; after consumption there remains nothing to become the subject of title.
What the customer pays for is a right to satisfy his appetite by the process of destruction.
What he thus pays for includes more than the price of the food as such.
It includes all that enters into the conception of service, and with it no small factor of direct personal service.
It does not contemplate the transfer of the general property in the food supplied as a factor in the service rendered.
" Subsequent cases drew on these observations, notably Mary Nisky vs Childs Company.
(1) The position was radically altered in the United States by the enactment of the Uniform Commercial Code, which provides in effect that the serving for value of food or drink to be consumed either on the premises or elsewhere constitutes a sale.
Nonetheless it is affirmed in the second edition of American Jurisprudence(2) that where the Code does not operate, "in general the pre Code distinction between a contract for sale and one for the giving of services should continue.
" (l) (2) Vol.
67 p. 142 para 33.
562 It has already been noticed that in regard to hotels this Court has in M/s. Associated Hotels of India Limited (supra) adopted the concept of the English law that there is no sale when food and drink are supplied to guests residing in the hotel.
The Court pointed out that the supply of meals was essentially in the nature of a service provided to them and could not be identified as a transaction of sale.
The Court declined to accept the proposition that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs.
If that be true in respect of hotels, a similar approach seems to be called for on principle in the case of restaurants.
No reason has been shown to us for preferring any other.
The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need.
What has been said in Electa B. Merrill (supra) appears to be as much applicable to restaurants in India as it does elsewhere.
It has not been proved that any different view should be taken, either at common law, in usage or under statute.
It was urged for the respondent that in Associated Hotels of India Ltd. (supra) this Court drew a distinction between the case of meals supplied to a resident in a hotel and those served to a customer in a restaurant.
We are unable to find any proposition of law laid down by the court there which could lead to that inference.
We may point 13 out that in the view which appeals to us we find ourselves unable to agree with the observations to the contrary made by the Punjab High Court in M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation officer, Simla(1) and by the Delhi High Court in Municipal Corporation of Delhi vs Laxmi Narain Tandon and another.
(2), In the result, we hold that the service of meals to visitors in the restaurant of the appellant is not taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi, and this is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.
In the circumstances of the case, we make no order as to costs.
N.V.K. Appeals allowed (1) A. I. R. 1966 Punjab 449.
(2) A, I. R. 1970 Delhi 244.

Output:
The appellant runs a hotel in which meals are served to non residents also in the restaurant located in the hotel.
The sales tax authorities treated a portion of the receipts as representing the price of foodstuffs served and levied tax.
The High Court affirmed the view of the sales tax authorities.
On the question whether the transaction constituted sale of foodstuffs.
Allowing the appeals ^ HELD. 1.
Service of meals to non residents in the restaurant of 'the appellant is not taxable under the Bengal Finance (Sales Ta%) Act 1941, as extended to the Union Territory of Delhi.
This is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.
[562 F; 2.
In State of Punjab vs M/s. Associated Hotels of India ; this Court held that there was no sale when food and drink were supplied to guests residing in the hotel.
The Court pointed out that the supply of meals was essentially in the nature of a service provided to the guests and could not be identified as a transaction of sale.
This Court declined to accept the position that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs.
If that be true in respect of hotels, a, similar approach seems to be called for on principle in the case of restaurants.
Like the hotelier, a restaurateur provides many services in addition to the supply of food.
He provides furniture and furnishings, linen, crockery and cutlery, and he may add music, an area for floor dancing and in some cases a floor show.
The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need.
No reason has been shown for preferring any other view.
[562 B, 560 F G, 562 C] State of Punjab vs M/s. Associated Hotels of India Ltd. ; applied.
M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation Officer Simla not approved.
Municipal Corporation of Delhi vs Laxmi Narain Tandon and Another not approved.
Crisp vs Pratt [1639] Cro.
Car 549, Parker vs Flint [1699] 12 Mod.
254 Newton v .
Trigg 3 Mod.
327, Saunderson vs Rowles Electa B. 558 Merrill vs James W. Hodson , and Mary Nisky vs Child Company SO A.L.R. 227 referred.