Hindu joint family-Hotch Potch-self acquisition when acquires characteristics of joint family property -concurrent finding that business is separate--Supreme Court will not interfere under Art. 133. HEADNOTE: There is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. [466 F-H] Bhuru Mal v. Jagannath, A.I.R. 1943 P.C. 40, Pearey Lai v. Nanak Chand, A.I.R. 1948 P.C. 108, Chattanatha Karayalar v. Ramachandra Iyer, A.I.R. 1955 S.C. 799, referred to. The separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. Mere recitals in deeds dealing with self acquisitions as ancestral joint family property is not by itself sufficient; but it must be established that there was a clear intention on the part of the coparcener to waive his separate property.[470 B-c] Hurpurshad v. Sheo Dyal, 3 I.A. 219. Lal Bahadur v. Kanhaiya Lai, 34. I.A. 65, Lola Muddun Gopal v. Khikhinda Koeri 18 I.A. 9, Naina Pilla v. Daiyanai Ammal, A.I.R. 1936 Mad. 177, referred to. where there is a concurrent finding of both the lower courts that the business is a separate business and it is neither a joint family business nor treated as joint family business, it is not open to further scrutiny by this Court under Art. 133 of the, Constitution. [467 A-B]

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=2121
PETITIONER:
G. NARAYANA RAJU

Vs.

RESPONDENT:
G. CHAMARAJU & OTHERS

DATE OF JUDGMENT:
19/03/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
MITTER, G.K.

CITATION:
 1968 AIR 1276  1968 SCR  (3) 464
 CITATOR INFO :
 F    1976 SC1715 (13)


ACT:
Hindu joint  family-Hotch  Potch-self acquisition when
acquires   characteristics   of  joint  family    property
-concurrent finding that business is separate--Supreme Court
will not interfere under Art. 133.



HEADNOTE:
There  is  no presumption under Hindu law  that a  business
standing in the name of any member of the joint family is  a
joint family business even if that member is the manager  of
the  joint  family.   Unless  it could be  shown  that the
business  in  the hands of the coparcener grew up  with the
assistance  of the joint family property  or  joint  family
funds or that the earnings of the business were blended with
the  joint  family  estate, the business  remains  free and
separate. [466 F-H]
Bhuru  Mal v. Jagannath, A.I.R. 1943 P.C. 40, Pearey Lai  v.
Nanak Chand, A.I.R. 1948 P.C. 108, Chattanatha Karayalar  v.
Ramachandra Iyer, A.I.R. 1955 S.C. 799, referred to.
The separate property of a Hindu coparcener ceases to be his
separate  property and acquires the characteristics  of his
joint  family  or  ancestral property, not by  mere  act  of
physical mixing with his joint family or ancestral  property
but  by his own volition and intention, by his waiving  or
surrendering  his special right in it as separate  property.
Mere  recitals in deeds dealing with self  acquisitions  as
ancestral joint family property is not by itself sufficient;
but it must be established that there was a clear  intention
on  the part  of  the coparcener  to waive  his  separate
property.[470  B-c]
Hurpurshad  v. Sheo  Dyal,  3 I.A.  219.   Lal Bahadur  v.
Kanhaiya  Lai, 34. I.A. 65, Lola Muddun Gopal  v.  Khikhinda
Koeri 18 I.A. 9, Naina Pilla v. Daiyanai Ammal, A.I.R. 1936
Mad. 177, referred to.
where there is a concurrent finding of both the lower courts
that the business is a separate business and it is neither a
joint family business nor treated as joint family  business,
it is not open to further scrutiny by this Court under Art.
133 of the, Constitution. [467 A-B]



JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 613 of 1965.
Appeal from the judgment and decree dated March 25, 1960  of
the Mysore High Court in Regular Appeal No. 155 of 1953.
V. Krishnamurthy and R. Gopdlakrishnan, for the appellant.
H.   R. Gokhale,  B.  Subbiah and  R. Thiagaraian, for,
respondents Nos. 2 and 4.
The Judgment of the Court was delivered by
Ramaswami,  J. The plaintiff G. Narayana Raju filed O.S.  34
of  1951-52  in the Court of  District Judge, Mysore for
partition   and separate  possession  of  suit  properties
mentioned in the various schedules of the plaint.  The first
defendant is the brother
465
of  the plaintiff.  The second defendant is  the  widow  of
Muniswami  Raju, the eldest brother of the  plaintiff. The
third defendant  is  the  legal  representative   of the
plaintiffs  mother.  She is now the, appellant having been
brought on  record  as the  legal  representative  of the
deceased  plaintiff. The case of the original plaintiff was
that he, the first defendant and Muniswami Raju (husband  of
the  second defendant) were the sons of one Gopala Raju and
were all members of the joint family Gopalaraju died in May
1931  and  after his death the plaintiff  and  his  brothers
continued  to  be members of the joint family.  The  joint
status of  the,  family  was severed  by  the issue  of  a
registered notice by the first defendant to the plaintiff in
July 1951.  An ancestral house in Nazar bad belonging to the
family was acquired by the City IuprovementTrust Board in or
about the year 1909.  Out of the compensation paid for that
house and supplemented by the earnings of the members of the
joint  family, the house item No. I of Schedule 'A'  to the
plaint was  purchased by Gopalaraju in or  about  the year
1910. Subsequently  item No. 2 of Schedule  'A'  was also
purchased by Gopalaraju from the income of item No. I supple
mented by the earnings of the members of the  family. All
the other items of properties mentioned in Schedule 'A' and
other Schedules attached to the plaint were acquired out  of
the  income  from  items 1 and 2 of  Schedule  'A',  It was
further alleged that the business known as "Ambika  Stores"
was  also the joint family business and all  the  properties
mentioned in the Schedules except items I and 2 of  Schedule
'A'  were acquired out of the income of the members  of the
family including  the income from the business  of  Ambika
Stores.  The plaintiff accordingly claimed that he and the
first defendant would each be entitled to get 5/14ths  share
and  the second and third defendants would each be  entitled
to  get 2/14ths. share.  In the alternative  the  plaintiff
pleaded that  if  for any reason the Court  held  that the
properties stand in the name of Muniswami Raju and were not
acquired with the aidof the joint familv nucleus, he and the
second defendant were entitled to equal shares as  co-owners
of the joint family business.  The suit was mainly contested
by  the second defendant who asserted that  the  properties
mentioned  in  all the Schedules of the plaint were  self-
acquisitions of Miiniswami Raju and constituted his separate
properties.  It was alleged that Muniswami Raju was the only
carniiig member of the family at the time of the acquisition
of items 1 and 2 of Schedule operties and the plaintiff and
the  first defendant were emploved,in petty jobs  in  Wesley
Press. Muniswami Raju later on employed the  plaintiff  in
his  -shop  as a salaried servant and the  latter  had  no
proprietary  right in the business of Ambika Stores.   After
consideration  of  the oral and  documentary  evidence the
District Judge held that the plaintiff, first defendant and
Muniswami  Raju were not divided and that the only  property
which was divisible was item No. I of Schedule
466
'A'  and  there was not sufficient  ancestral nucleus for
acquisition of the other properties and that all  properties
except item No. 1 of Schedule 'A were the self acquisitions
of  Muniswami Raju, that Muniswami I Raju never blended his
properties with that of the joint family that the  plaintiff
was  only an employee under Muniswami Raju and therefore  he
was not entitled to the alternativ ' relief claimed by him.
Accordingly, the District Judge granted a preliminary decree
holding that the plaintiff was entitled to 2/7ths share  in
item  No. I of Schedule 'A'.  The plaintiff took the  matter
in  appeal to the Mysore High Court.  By its judgment  dated
March  25,  1960 the High Court affirmed the decree  of the
trial court with the modification that besides item No. I of
Schedule  'A'  item No. 2 also should be hold  to  be  joint
family property and the plaintiff was entitled to  partition
of  his share in this item also.  The High  Court  cancelled
the  I direction of the District Judge that  the  plaintiff
should account for the moneys and properties  of  Muniswami
Raju  -in  his hands before he is given possession  of his
share.
This  appeal  is  brought by certificate on  behalf  of the
plaintiff  from the judgment of the Mysore High Court  dated
March 25, 1960 in R.A. No. 155 of 1953.
The  first  question  to be considered in  this  appeal  is
whether the  business of  Ambika  Stores  was really the
business  of the joint family and whether the plaintiff was
entitled. to a partition of his share in the assets of that
business.: It was contended on behalf of the appellant that
the  business of Ambika Stores grew out of a nucleus of the
joint family funds of at least by the efforts of the members
of  the joint family include the appellant.  The  contention
of the appellant has been negatived by both the lower courts
and there is a concurrent finding that the Ambika Stores was
the  separate business of Muniswami Raju and it was  neither
the  joint  family  business nor  treated  as  joint  family
business, It is wellestablished that there is no presumption
under Hindu law that a business standing in the name of any
member of the joint family is a joint family business even
if that member is the manager, of the joint family.  Unless,
it  could  be shown that the business in the  hands  of the
coparcener  grew up with the assistance of the joint  family
property  or joint family funds or that the earnings of the
business  were blended with the joint family estate, the
business remains free and separate.  The question  therefore
whether the  business was begun or  carried  on  with the
assistance of joint family property or joint family funds or
as  a  -family business is a  question of  fact.-(See the
decisions of the Judicial Committee in Bhwu Mal v. Jagannath
(1)  and in Pearey Lal v. Nanak Chand (1) and of this  Court
in Chattahatha Karayalar v. Ramachandra
(1)   A.T.R 1943 P.C 40.
(2)   A.T.R. 1948 P.C  108.
467
lyer)  (1).   In  the present, case there  is  a  concurrent
finding of both the lower courts that the business of Ambika
Stores was a separate, business of Muniswami Raju  and it,
was  neither  a joint family business nor treated  as  joint
family business.  The concurrent finding of the lower courts
on  this issue is upon a finding of fact and  following the
usual practice of this Court, it is not now open to  further
scrutiny by this Court under Art. 133 of the Constitution.
It  was, however, contended on behalf of the appellant that
the finding of the lower. courts is vitiated in, law because
of  the circumstance that they have not taken  into  account
three important documents, Ex. D, Ex. E and Ex.  DDD.  We
are  unable  to accept this argument  as  correct.   It  is
manifest on a perusal of the judgment of the High Court that
all  the documents have been examined, regarding  the  issue
whether the  business of Ambika Stores was a  joint  family
business  or whether it was p. separate, business  of  Muni-
swami  Raju.  As regards Ex.  D, the High-,Court has,  after
examining the evidence adduced, remarked that the, mere fact
that  item No. 2 of Schedule 'A was given as a security  by
Muniswami Raju did not result in any detriment to the  joint
family property and, it cannot therefore be held  that the
business of Ambika Stores grew out of the joint family funds
or with the aid of the joint family funds.  On behalf of the
appellant  reliance was placed on the recitals in Ex.  E,  a
deed of mortgage dated July 26, 1928 executed by Gopalaraju,
Muniswamiraju  and  the appellant in favour  of the  Mysore
Bank. The  property  that had been  mortgaged under this
document is item No. 2 of Schedule 'A'. The recital is that
the  borrowing from the Bank was for the business and  trade
of  the executants and -for the benefit and  use  of  their
family.  There is also a recital in an earlier portion  of
the document that the business, was being carried on for the
benefit of  the  family, but it is not quite  clear  as  to
whether this related to the business carried on by  Narayana
Raju  or whether it was intended to relate to some  business
carried on by all the three executants. It is possible that
the  appellant had other business of his own carried on -on
his own. account at that time and it cannot be, assumed that
the borrowing under Ex. E must have been for the purpose of
Ambika Stores. It should be noticed that  Muniswarni Raju
has  been  described in the document as the  proprietor  of
Ambika Stores which description is. not consistent with the
contention  of the appellant that the business, was a  joint
family business.  The High Court has, in  this connection,
referred  to Ex.  I an application dated February 14,  1929,
by  the appellant  to the City Co-operative  Bank,  Mysore
wherein, the appellant has said that he was getting a decent
earning by  doing;  out-of-door  commercial  business with
Ambika Stores. There is also the, recital in Ex.   I that
Muniswami Raju was the proprietor of Ambika Stores.   Having
regard to this recital in I it is not-
(1)  A.I.R. 1955 S.C. 799.
468
unlikely that the appellant had some business of his own  at
the  material time and it cannot be assumed  that  borrowing
under Ex.  E, was for the purpose of Ambika Stores  business
only.  The High Court has also dealt with the effect of Ex.
DDD, mortgage deed produced on behalf of the appellant.  It
is  true that in this document the appellant  and  Muniswami
Raju  have been described as proprietors of  Ambika  Stores.
The finding of the High Court is that this recital was made
in the document for the purposes of borrowing from the Bank.
Reference was made in this context to a letter dated May  5,
1931,  Ex.  75 written by Muniswami Raju  as  proprietor  of
Ambika Stores to the Bank of Mysore.  In' this letter,  he
has requested the Bank to take note of the fact that he has
authorised the appellant to accept drafts, and sign  letters
etc. on behalf of the firm' There is another Letter, Ex. 76,
dated  April 14, 1934 written by Muniswami Raju to the Bank
of  Mysore wherein Muniswami Raju has been described as the
proprietor  of Ambika Stores and there is an  intimation  to
the Bank, that the appellant Narayana Raju was authorised to
sign  for the firm.  In the context and background of  these
circumstances  it is evident that though both the  appellant
and  Muniswami Raju were described as proprietors of  Ambika
Stores the description was only for the purpose of borrowing
money  from the Bank, as contended for by  the respondents.
In  this  connection  the High Court  has  also taken into
account Ex. 7 5 (b), a letter written by Muniswami Raju.  In
this  letter  Muniswami Raju has described  himself  as the
proprietor of Ambika Stores and has instructed the Bank that
he  has cancelled the authority given to the  appellant  to
operate one  his  Current Account with the  Bank.   It  is
therefore  not possible for us to accept the  contention  of
the  appellant that the finding of the High Court  that the
business  of  Ambika Stores was the  exclusive business  of
Muniswami Raju is vitiated in law.
On the other hand, it was contended on behalf of the respon-
dents  that  the finding of the High Court is  supported  by
proper evidence.  The business of Ambika Stores was  started
by  Muniswamiraju as the proprietor thereof at a  time when
Muniswamiraju himself was comparatively well-off as a result
of  his partnership with Krishnaswamy Chetty & Co.  In the
year  1925 the partnership of Krishnaswamy Chetty & Co. was
dissolved by a document Ex. D. The entire business with 'all
the  assets ad liabilities was taken over by Muniswami Raju
while the widow and son of Krishnaswamy Chetty were given  a
house estimated by the appellant himself at Rs. 3,000/- and
furniture worth Rs. 400/-.  Muniswami Raju changed the name
of  the 'shop after taking it over into Ambika Stores and
continued the business as is apparent from Exs. XVIII, XXVI
and XXVI(A).  There- is also evidence that at the time when
Ambika Stores was started other members of the family  we're
not in a financial position to make any contribution to pur-
469
such a business.  The appellant joined Wesley Press in 1912
on a salary of Rs. 8 or Rs. 9 p.m. and he was drawing Rs. 27
p.m.  in  1927 when he resigned from the Press.  The  first
defendant  joined Wesle Press in 1910 on a salary of Rs.  10
p.m.   and  he was  continuing to  work  there  till the
institution of the present suit.  'Me income of the property
item  No. 2 of' Schedule 'A' was Rs. 15 p.m. and the  income
from  pounding rice  for which there is  no satisfactory
evidence  was also negligible. Therefore, the earnings  of
the  members  of the family other than Muniswami  Raju were
hardly sufficiently to maintain the family at the time when
the  business of Ambika Stores was started.  The High  Court
has  found that the family did not have sufficient  nucleus
and  that Muniswami Raju was not a partner  of Krishnaswamy
Chetty &  Co. on behalf of the family but that  he  was  a
partner in his own right.  The High Court has observed that
there  is no evidence to show that the family  supplied the
money or that the family had enough means or that  Muniswami
Raju  was  representing the  family  when  he started the
business  of  Ambika Stores.  As we have already  said, the
finding of  the High Court and of the District Judge  is  a
concurrent  finding  on a question of fact  and Counsel  on
behalf of  the appellant has been unable to make  good his
argument that the finding is vitiated in law on any account.
We pass on to consider the alternative argument put  forward
on  behalf  of the  appellant, namely, that  even  if the
business  of  Ambika  Stores  was  started  as, a  separate
business  of  Muniswami Raju, it  became  converted  at  a
subsequent stage into joint family business.  It was  argued
on  behalf  of the appellant that the business  of  Ambika
Stores was thrown by Muniswami Raju into the  common  stock
with  the intention of abandoning all separate claims to  it
and  therefore the  business  of  Ambika  Stores  lost its
character of a separate property and was impressed with the
character   of joint  family  property.   It  is  a   well-
established  doctrine of Hindu law that property  which was
originally self-acquired may become joint property if it has
been  voluntarily  thrown by the coparcener into  the  joint
stock  with the intention of abandoning all separate  claims
upon it.  The doctrine has been repeatedly recognized by the
Judicial Committee [See Hurpurshad v. Shea Dayal(1) and Lal
Bahadur v. 'Kanhaiya Lal(-).  But the question whether the
coparcener has done so or not is entirely a question of fact
to  be decided in the light of all the circumstances of the
case. It  must  be  established that there  was  a  clear
intention  on  the  part  of the  copareener  to  waive his
separate  rights and such an intention will not be  inferred
merely from acts which may have been done, from kindness  or
affection  [See the  decision in  Lata  Muddun  Gopat  v.
Khikhinda  Koer (3). For instance,  in  Naina  Piltal  v.
Daiyanai
(1) 3 I.A. 259.       (2) 34 I. A. 65.
(3) 18 I. A. 9.
470
Ammal, (1)  where in a series of  documents,  self-acouired
property  was  described and dealt with as  ancestral-joint
family it was held by the Madras High Court that the mere
dealing with self-acquisitions as joint family property was
not  sufficient but an intention of the coparcener  must  be
shown  to waive his claims with full knowledge of his  right
to it as his separate property. The important point to keep
in mind, is that the separate property of a Hindu coparcener
ceases to  be his  separate  property and  -acquires the
characteristics of his joint family or ancestral  property,
not by mere act of physical mixing with his joint family  or
ancestral  property, but by his own volition and  intention,
by  his waiving  or surrendering his special  right  it  as
separate  prop".  A man's intention can be  discovered only
from-  his words or from his acts I and conduct.   When his
inention  with regard to  his separate  property  is not
expressed  in  words, we must seek for it in  his  acts and
conduct.  But it is the intention that we must seek in every
case, I the acts and conduct being no more than evidence  of
the  intention. - In the present case, the High  Court has
examined the evidence adduced by the parties and has reached
the  conclusion that there was no intention on the  part  of
Muniswami  Raju to throw the separate business  of  Ambika
Stores into the common stock, nor was it his  intention  to
treat  it as a joint family business.  Counsel on behalf  of
the appellant referred to the recital, in Ex.  E  describing
the  properties being those of the executants and  that the
borrowings  was for trade and benefit of the family  and  it
was argued that there was a clear intention on the part of.
Muniswaini  Raju  to  treat the business  as  joint  family
business.   We have already referred to this  document and
indicated  that the  recitals were probably  made  for the
-purpose  of  securing a loan and cannot  be  construed  as
consent on the part of the members of the joint  family  to
treat  the business as the joint family business.   Further,
there is ample evidence to show that in all succeeding years
before his death Muniswami Raju had always described himself
and  conducted himself as the sole  proprietor  of  Ambika
Stores, Such an attitude on the part of Muniswami Raju was
not  consistent with any intention on his  part  either  to
abandon his exclusive right to the business or to allow the
business' to be treated as joint family business.   Exhibits
XXXV to XLVI are all documents executed by third parties  in
favour of Muniswami Raju in which Muniswami Raju  has been
described as the proprietor of Ambika Stores.  Exhibits III,
XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB -are all
communications addressed by institutions like Banks etc., in
which Muniswwni Raju has been described as the proprietor of
Ambika Stores. It may be stated that the appellant  himself
has  admitted  in his evidence that he was not drawing any
moneys from the business of Ambika Stores and that  whenever
he wanted any_money, he would ask Muniswami Raju and obtain
(1)  A.I.R. 1936 Mad .177.
471
from him.  If really the appellant had considered himself to
be  I co-owner equally with Muniswami Raju, such conduct  on
his  part is not explicable. it was urged on behalf  of the
appellant  that there was no documentary evidence  to show
that  the  appellant was being paid  any  salary  'Muniswami
Raju,  and that prior to Muniswami Raju's death, it was the
appellant who was in the entire management of Ambike  stores
when Muniswami Raju was ill and after the death of Muniswami
Raju  also it was the appellant who had been in management.
Al,  the books of account and other documents pertaining  to
the business of Ambika Stores had been admittedly  entrusted
to the appellant.  But it is not explained on behalf of the
appellant  as to why the documents were not produced on his
behalf to disprove the Case of the respondents that he was a
salaried servant.  It is therefore not unreasonable to draw
an  inference  from the conduct of the appellant  that the
Account Books, if  produced  in  court,  would  not have
supported  his case.  We accordingly reject the argument  of
the  appellant that the business of  Ambika  Stores  became
converted into joint family business at any subsequent stage
by  the conduct of Muniswami Raju in throwing  the  business
into  the  common stock or in blending the earnings  of the
business with the joint family income.
it was finally contended on behalf of the appellant that, in
any  event, the appellant became a co-owner of the  business
along  with Muniswami Raju by reason of contribution of his
own labour towards the development of the business.  In our
opinion,  there is no substance in this  argument.   It  is
evident that the appellant gave up his job in Wesley  Press
and  joined Ambika Stores about 9 or 10 months after it was
started by Muniswami Raju.  The appellant does not state  in
his  evidence that he was a co-owner when he  joined  Ambika
Stores.  On  the  other  hand, in  Ex.  68  which  is  an
application  dated  March 20, 1928 by the appellant  to the
City Co-operative Bank, the appellant has described  himself
as  a  clerk in Ambika Stores and Muniswami  Raju  has been
described  as  his  proprietor. There is  no satisfactory
evidence  on behalf of the appellant to show as to when and
under -which circumstances his status of a clerk changed  to
that of a co-owner.  In another application, Ex.  I which is
of the year 1929 the appellant has described Muniswami Raju
as  the Proprietor of Ambika Stores and  he  has  described
himself as doing out-door commercial business with  Ambika
Stores.  Again, in Ex. C which is a loan application made
in  1932  by  both the brothers,  Muniswami  Raju  has been
described  as  the  proprietor of Ambika  Stores  while the
appellant  has been  described as  a  General Merchant  of
Mysore.  Reference was made on behalf of the  appellant  to
recitals in Ex. DDD, a mortgage deed dated June 20, 1934 in
which  Muniswami Raju and the appellant have been  described
as proprietors of Ambika Stores.  We have already dealt with
this, document and for the reasons already mentioned we hold
that the description of the
472
executants was only given for the purpose of borrowing from
the  Bank  and it had not the legal effect  of making the
appellant . co-owner of the partnership business.  There  is
no  evidence  of  any  assertion  by  the  appellant  during
Muniswami  Raju's life-time of his being a co-owner  of the
partnership   business, nor  is  there any   evidence  of
recognition  by Muniswami  Raju of any such  right  of the
appellant.  On the other hand, there is sufficient  evidence
to  show that whatever the appellant did in connection with
the  business  was only done with the Authority conferd  by
Muniswami  Raju.  In our opinion the High Court has  rightly
rejected  the claim of the appellant that he was a  co-owner
of the partnership business.
For  the  reason expressed we hold that this appeal  has  no
merit and it must be dismissed with costs.
R.K.P.S.       Appeal dismissed.
473

Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound disposing state of mind of testator. HEADNOTE: One V lost his father when he was only 10 years old and. thereafter lived along with his mother, in the- house of the first defendant who was his maternal uncle. The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding. V died when he was 24 years old. A few. days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death. At the time of the execution of the -will V was physically in a weak condition. The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will. Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will. On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid. [480,A-B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who -propound the will to remove that suspicion. What are suspicious circumstances must be judged on the facts and circumstances of each particular case. If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in -such a case the court should proceed in a vigilant and cautious, manner. [477 R; 478 A-B] Barry v. Butlin, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton, (1894) P. 151, 157, 159 and Sarat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=2120
PETITIONER:
GORANTLA THATAIAH

Vs.

RESPONDENT:
THOTAKURA VENKATA SUBBAIAH & ORS.

DATE OF JUDGMENT:
19/03/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
MITTER, G.K.

CITATION:
 1968 AIR 1332  1968 SCR  (3) 473


ACT:
Will-Propounder taking prominent part, in execution of and
receiving  benefit  under-Principles regarding scrutiny  of
evidence  of execution and sound disposing state of mind  of
testator.



HEADNOTE:
One  V lost his father when he was only 10 years  old and.
thereafter lived along with his mother, in the- house of the
first  defendant  who  was his maternal uncle.  The  first
defendant  had considerable influence over V as he was slow
witted and  below the average level  of  intelligence and,
understanding. V  died when he was 24 years old.   A few.
days  before  his  death  he executed a will  by  which  he
bequeathed  his entire property  to  the  first  defendant
absolutely  with  a  direction that  his  mother  should  be
maintained,  and that, even if his mother  lived  separately
from  the  first  defendant, she was to have  only  a life
interest  in  certain  items which were also  to  be  taken
absolutely  by the first defendant after her death.  At the
time  of  the execution of the -will V was physically  in  a
weak condition. The first defendant took a prominent part in
summoning  the attesting witnesses and the  scribe  and  in
Procuring, writing materials for the execution of the  will.
Evidence was given on behalf the first defendant that though
V was delirious on the day previous to the execution of the
will  and  also subsequent to that date, V was in  a  normal
condition on the date of the execution of the will.
On the question of the validity of the will,
HELD : The will was not executed in a sound disposing  state
of mind and was therefore not legally valid. [480,A-B]
In  a  case in which a will is prepared under circumstance
which  raise  the suspicion of the court that  it  does not
express the  mind  of the testator it is  for  those who
-propound  the will  to remove that  suspicion.   What are
suspicious  circumstances  must be judged on the  facts and
circumstances  of  each particular case.  If,  however, the
Propounder  takes a prominent part in the execution  of the
will  which confers substantial benefits on him that  itself
is a suspicious circumstance attending the execution of the
will  and in appreciating the evidence in -such a  case the
court  should  proceed in a vigilant and  cautious,  manner.
[477 R; 478 A-B]
Barry  v.  Butlin, (1838) 2 Moo.  P.C. 480, 482,  Fulton  v.
Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton,  (1894)
P.  151,  157, 159 and Sarat Kumari Bibi v.  Sakhi  Chand  &
Ors., 56 I.A. 62, applied.



JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 431 of 1965.
Appeal from the judgment and decree dated August 22, 1963 of
the Andhra Pradesh High Court in Appeal No. 554 of 1959.
H. R. Gokhale and K. R. Chaudhuri, for the appellant.
D. Narsa Raju, S. T. Desai, A. Vedavalli and A. V. Rangam
for the respondents.
474
The Judgment of the Court was delivered by
Ramaswami,  J. This appeal is brought by certificate on be-
half of the plaintiff from the judgment of the High Court of
Andhra Pradesh in Appeal Suit No. 554 of 1959 dated  August
22, 1963.
One Gorantla Tathiah, as the, sole plaintiff, filed O.S. No.
2 ,of 1957 in the Court of the Subordinate Judge'.   Bapatla
for possession of certain properties which had been left  by
Gorantla  Veeriah when he died issueless on June  24,  1939.
Originally,   there  were  ten defendants  in the   suit.
Defendant  no. 1  is  the maternal  uncle  of Veeriah and
Defendant  no. 2  and Defendant .no. 3 are,  the  sons  of
Defendant  no. 1. Defendants nos. 4 to 8 were  the  alienees
from Defendant no. 1's family. Defendants nos. -7, 9 and 10
did  not  contest  the suit.  Defendant no. 8  died  in the
,course of the suit and his legal representatives were added
as  Defendants I I to 14.  Defendants 1 to 3  contested the
suit on the ,ground that Defendant no. 1 became entitled  to
the  properties of Veeriah under the will, Ex.  B-4  dated
June, 17, 1939 which Veeriah executed in his favour.  It was
contended  in  the alternative -that at the  time  when the
reversion opened on the death of Veeriah's mother,  Rattamma
on October 1, 1956, Defendant no. 1 was the nearest heir and
not  the plaintiff, under the Hindu Succession Act  (XXX  of
1956)  which had come into force on October 17, 1956. The
Additional  Subordinate Judge, Bapatla held' that  the will
was true and genuine but it was not legally valid as it was
executed  by Veeeriah at a time when he had no testamentary
capacity.   It was also held that the Hindu  Succession Act
did  not  apply to the facts of the  case.   The  Additional
Subordinate   Judge   accordingly  granted  a decree for
-possession  of properties except -item no. 4 in favour of.
the plaintiff as against Defendants nos.  I to 3, 6, 7 and I
I to 14.  Defendants I to 3, 7, 1 1 and 1 3 took the  matter
in  appeal  to the  High  Court  of  Andhra  Pradesh. The
plaintiff also Preferred a Memorandum of Cross Objections to
the  -,extent the trial Court's decree was against him.  By
its  judgment dated August 22, 1963, the High Court  allowed
the appeal, holding that the will, Ex. B-4 was executed  by
Veeriah in a sound and disposing state of mind and that the
will was not only true but was -valid and binding upon the,
plaintiff.   The High Court accordingly dismissed the  suit.
The Memorandum of Cross Objections was also dismissed.
The  first  question  to be considered in  this  appeal  is
whether the  will, Ex. B-4 was true and  genuine  and was
executed by Veeriah in a sound and disposing state of mind.
It  is not disputed that one Gangiah died leaving his  widow
Rattamma  and his only son through her called Veeriah and  a
-young daughter.  The girl died without leaving any issue in
the  -year  1932.  Veeriah was a little boy and it  is not
disputed that
475
he  was below average, in intelligence and  understanding.
Rattamma  alongwith  her  son took  up residence  with her
brother,  Defendant no. I who was a man of great wealth and
influence  in the. village, owning fifty acres of  land and
outstanding   credits  to  the extent of   Rs.   20,600/-.
Rattamma's  husband had left properties to the extent of  13
acres of land. In spite of owning so much property  Veeriah
was engaged as a cow-boy in tending  cattle.  In June  1939,
he  had an attack of typhoid, became bed-ridden  and  ulti-
mately died of the disease on June 24, 1939.  The  case  of
the  contesting defendants was that  Veeriah  executed the
will,  Ex.  B-4 on June 17, 1939, that D.W. 4 wrote  it and
nine  witnesses attested it but the will was not  registered
in Veeriah's life-time. On October 15, 1939, defendant no.
1. and Raittamma presented the will, Ex. B-4 before the Sub-
Registrar,  Chirala  for registration. The  Sub-Registrar,
however, refused to register the, will by his order, Ex.  A-
45  in W.C. 4 of 1939. Defendant no. 1 preferred an  appeal
before the  District Registrar, Guntur but the appeal was
dismissed.   Defendant no.  I then filed O.S. no.   III  of
1940  in  the  court of District  Munsif,  Bapatla  against
Ramayya (father of defendants 9 and 10), the plaintiff and
Rattamma for a direction for registration of the will. The
District  Munsif returned the will to defendant no.   I for
want of pecuniary ,jurisdiction.  Defendant no. 1  presented
it to the Subordinate Judge, Bapatla and got it numbered  as
O.S.  no. 6 of 1941.  The suit was ultimately  dismissed  by
the Subordinate Judge on the question of limitation.  Defen-
dant  no.  1 and Rattamma filed O.S. no. 13 of 1942  in the
Subordinate  Judge's court, Bapatla for a  declaration that
the  will  was genume and valid.  Ramayya  filed  a  written
statement  and the suit was ultimately decreed in favour  of
Defendant  no. I  and Rattamma.   The present  plaintiff,
Gorantla Tathaiah was, however, not a party to that suit.
In  the will, Ex.  B-4 it is stated  by  the testator  as
follows
     "...  Typhoid  condition has set in.   As  no
     treatment has been effective in curing this
     condition I have lost confidence that I will
     survive. Therefore I have wholeheartedly made
     the following disposition regarding my movable
     and  immovable properties in order that  there
     may  be  no  obstruction in  future  from any
     source whatsoever.
     That  my mother Rattamma should be  maintained
     comfortably for her life-time and.that in case
     there  is disagreement  between her  and   I
     material uncle. Venkatasubbayya  and they
     decide   to   live  separately, my   mother,
     Rattamma, should enjoy the  income  of the
     property mentioned  in 'B' Schedule  for her
     life-time without  exercising any  powers  of
     disposition  by way of gift, sale etc., over
     the property and that after her life.
L7 Sup. C.I./68-6
476
     time.  the  entire property mentioned  in 'B'
     schedule should devolve in my maternal  uncle,
     Venkatasubbayya.   My maternal     uncle,
     Venkatasubbayya shall enjoy the   entire
     properties mentioned in 'A' and 'B'  Schedules
     with absolute powers of disposition by way  of
     gift, sale etc."
In  the will it is mentioned that Veeriah had sold his land
on  May 30, 1939 to defendant no. 4 and received an  advance
of  Rs. 165/with the stipulation that the balance  of sale
price should be paid at the time of registration.   Veeriahl
also  said  that  in  case he  did  not live  long  enough,
defendant  no. 1 should complete the sale  transaction and
receive the balance of price from defendant no. 4. The will
was written by one Ammanamanch Sambiah, D.W. 4 the karnam of
the village.  There are 9 attesting witnesses of whom  three
are dead.  On behalf of the plaintiff two of the;  attestors
P.Ws. 8 and 9 were examined and two attesting witnesses were
examined as Court witnesses I and 2. On behalf of defendants
two attesting witnesses D.v. I and 6 besides the scribe D.W.
4  gave evidence.  P.W. 8 deposed that the testator did not
give any instructions or particulars for drafting the  will.
The  testator was very weak and in a delirious state and  he
was  not  in a position to put his thumb impression  to the
will. P.W.  9 is stone deaf and he could not give  proper
evidence.  He did not remember if Veeriah was raving and was
tearing his clothes.  D.Ws. 1, 4, 6 and 14 and C.Ws. 1 and 2
say that the testator was in a sound and disposing state of-
mind. It was the testator who gave instructions  regarding
the  disposition of the properties.  D.W. 4 wrote  the will
and  read it over to Veeriah who approved of it and put his
thumb impression thereon.  The evidence of P.Ws. 8 and 9  is
therefore  clearly in conflict with the evidence of C.Ws.  I
and 2 and D.Ws. 1, 4, 6 and 14. The evidence of C.Ws. I and
2  is interested.  It is admitted that C.W. I is related  to
defendant  no. 1  and C.W. 2 is  indebted  to  the  first
defendant to the extent of Rs. 1,400/-. As regards D.Ws. 1,
4  and 6, the trial court has remarked that their  testimony
is  not impartial and we see no reason to take a  different
view  as regards the effect of their testimony. So  far  as
D.W. 1 is concerned, he appears to have khatha dealings with
the  first defendant.  D.W. 4 admitted that he and  Venkata-
swamy  were  good friends and worked as karnam and  Village
Munsif for 30 years.  There was a case of  misappropriation
against Venkataswamy  and D.W. 4 deposed in his  favour  in
that  case.   It is in evidence that D.W. 6  is related  to
Ambati Veeriah who is married to  the,  first defendant's
niece. With  regard to P.Ws. 8 and 9 the  High  Court has
remarked that they had attested the will without any protest
or  adding any note Of protest though the testator,  Veeriah
was  not  in  a sound state of mind  at  the  time  of the
execution of the will. In our opinion, this circumstance is
of  no consequence and the High Court was not  justified  in
reject-
477
ing the evidence of P.Ws. 8 and 9 on this ground alone.  On
the  other  hand, there are two important  features  in the
present case which throw a great deal of doubt as to whether
the  testator was in a sound and disposing state of mind  at
the time of the execution of the will. It is- the  admitted
position that, the first defendant took a prominent role  at
the  time  of  the execution of the will  by  summoning the
scribe and the attesting witnesses.  It is stated by D.W.  1
that   the  first  defendant,  also  procured  the   writing
materials   and the  black  ink  for  affixing the   thumb
impressions of the witnesses.  It is also admitted that the
will preferred the first defendant to the mother.  Normally,
the  testator would have bequeathed all )us property to the
mother and would- have also given her power to adopt a boy
to perpetuate the lineage of the family.  Instead the mother
was given, in the will, a life interest in items 1 and 6 and
the  rest  of  the  properties were  given  absolutely  to
defendant  no. 1. It is undisputed that the testator was  24
years  of age at the time of the execution of the  will and
that he was far below the average level of intelligence and
understanding  and  nobody was prepared to offer a  girl  in
marriage  to  him.   There  is evidence  that Veeriah was
"lacking  in  wits"  and that he was  employed for  tending
cattle.  Further  more,  the testator was  suffering from
typhoid fever at the time of the execution of the will and
he  died a week thereafter i.e., on June 24, 1939.   In Ex.
B-4 it is recited that the testator was ailing for about  15
days and had become delirious. According to D.W. 4 when  he
arrived Veeriah  was  lying on a cot and he was  not  in  a
position  to  sit up by himself.  Both D.Ws. I and  4  admit
that the attesting witnesses and the scribe had all bled and
waited for nearly an hour, Both P.Ws. 8 and 9 say  that  at
the  time  of the execution of the will.  Veeriah was  in  a
delirious  state.   D.Ws, 1, 4, 6, 14 and C.W. I  all  admit
that  the testator was delirious on the-day previous to the
execution of the will and also subsequent to the day of the
execution of the will. These witnesses, however, state that
the testator, was quite all right and in normal condition on
the  date of the execution of the will. It is difficult  to
accept this part of the defence evidence.  Considering that
the  condition of the testator became, worse and he  died  a
week  thereafter it is difficult to accept the, evidence  of
defence witnesses and of CW.  I that the testator was, in  a
sound state of mind on the date of the execution of the win
but he was in a delirious 'state the day before and the day
after  the  execution  of the will.   In  our  opinion, the
Subordinate  Judge  was right in his  conclusion  that the
testator was physically weak and in a delirious mental state
at the time of the execution of the will.  We think the High
Court  had no justification for reversing the view taken  by
the Subordinate Judge on this point.
It  is well-established that in a case in which a  will  is
prepared  under circumstances which raise the  suspicion  of
the court that it does not express the mind of the  testator
it is for those who pro-
478
pound the  will  to  remove  that  suspicion.  What are
suspicious  circumstances  must be judged in the  facts and
circumstances  of  each particular case. -If,  however, the
propounder  takes a prominent part in the execution  of the
will  which confers substantial benefits on him that  itself
is  a suspicious circumstance attending-7 the  execution  of
the  will and in appreciating the evidence in such  a  case,
the court should proceed in a vigilant and cautious  manner.
It    is   observed   in   Williams   on   "Executors and
Administrators", Vol. I, 13th Ed., p. 92:
     "Although the rule of Rom an Law that 'Qui  se
     scripsit haeredem' could take no benefit under
     a will  does  not  prevail  in  the  law'  of
     England, yet, where the person  who  prepares
     the instrument, or conducts its execution,  is
     himself benefited by its dispositions, that is
     a circumstance which ought generally to excite
     the suspicion of the court, and calls on it to
     be  vigilant  and zealous  in  examining the
     evidence in  support  of the  instrument  in
     favour  of  which it ought not  to  pronounce,
     unless  the  suspicion is removed, and  it  is
     judicially  satisfied  that  the paper does
     express the true will of the deceased."
According to the decision in Fulton v. Andrew('), "those who
take  a benefit under a will, and have been instrumental  in
preparing or obtaining it, have thrown upon them the onus of
showing,  the righteousness of the transaction ". "There  is
however no  unyielding rule of law  (especially  where the
ingredient of fraud enters into the case) that, when it has
been  proved that a testator, competent in mind, has  had  a
will  read over to him, and has thereupon executed  it, all
further enquiry  is  shut out".  In  this  case,  the Lord
Chancellor,  Lord Cairns, has cited with approval the  well-
known  observations of Baron Parke in the case of  Barry  v.
Butlin (2).  The two rules of law set out by Baron Parke are
: "first, that the onus probandi lies in every case upon the
party propounding a will; and he must satisfy the conscience
of the court that the instrument so propounded is- the last
will of a free and capable testator"; "the second is,  that,
if a party *rites or prepares a will under which he takes  a
benefit,  that is a circumstance that ought  generally  to
excite the suspicion of the court and calls upon it  to  be
vigilant and zealous in examining the evidence in support of
the instrument in favour of which it ought not to  pronounce
unless the  suspicion is removed,- and  it  is  judicially
satisfied  that the paper propounded does express  the true
will of the deceased." In Sarat Kumari Bibi v. Sakhi Chand &
Ors.,  (3)  the Judicial Committee made it clear  that "the
principle which requires the propounder to remove suspicions
from  the  mind of the Court is not confined only  to  cases
where the propounder takes part in the
(1)  (1875) L.R.7H.L.448.  (2) (1838) 2 Moo. P.C.480,482.
(3)  56 I.A. 62.
479
execution of the will and receives benefit under it.   There
may  be other suspicious circumstances  attending  on the
execution of the will and even in such cases it is the duty
of  the propounder  to remove all clouds  and satisfy the
conscience  of the court that the instrument  propounded  is
the  last will of the testator." This view is  supported  by
the  following observations made by Lindley and  Davey,  L.
JJ., in Tyrrell v. Painton(1):
     "The  rule in Barry v. Butline (2 Moo. P.C.
     480);  Fulton  v. Andrew [(1875) L.R.  7,H.L.
     448]; and Brown v. Fisher [(1890) 63 L.T. 465]
     is not, in my opinion, confined to the  single
     case in which a will is prepared by or on the
     instructions of the person taking large  bene-
     fits  under  it, but extends to all  cases  in
     which  circumstances  exist which excite the
     suspicion of  the Court; and  wherever such
     circumstances exist, and whatever their nature
     may be, it is for those who propound the will
     to remove such suspicion and to prove affirma-
     tively that the testator knew and approved  of
     the  contents of the document, and it is only
     where this is done that the onus is thrown  on
     those  who oppose the will to prove  fraud  or
     undue influence, or whatever else they rely on
     to  displace  the case made  for proving the
     will." (Lindley, L.J.).
     "It  must not be supposed  the  principle  in
     Barry v Butlin (2 Moo.  P.C. 480) is  confined
     to  cases where the person who  prepares the
     will is the person who takes the benefit under
     it-that is one state of things which raises  a
     suspicion; but the principle is that  wherever
     a will is prepared under circumstances  which
     raise  a well grounded suspicion that it does
     not express the mind of the testator the Court
     ought not to pronounce in favour of it  unless
     that suspicion is removed." (Davey, L.J.).
It  is in the light of these principles that  the  evidence
adduced in this case will have to be considered.  As we have
already pointed  out, there is abundant testimony  in this
case  which  proves  'beyond doubt  that  the  testator was
physically  in a  weak condition and that  he  was  in  a
delirious state of mind at the time of the execution of the
will. It  is admitted that the  first  defendant  took  a
prominent part in summoning the attesting witnesses and the
scribe and  in procuring the writing materials  for the
execution of the will. There is also evidence that  Veeriah
lost his father, Gangiah when he was hardly 10 years of age
and  after  Gangiah's  death  the  first  defendant  brought
Rattamma  and  Veeriah to his house and was  looking  after
them., The  first  defendant  had  therefore considerable
influence over Veeriah and his mother Rattamma.
(1) (1894) P. 151,157,159.
480
There  is  also the circumstance that Veeriah  was  only  24
years of age at the time of the execution of the will and he
was slow witted and below the average level of intelligence
and  understanding.  Having regard to the cumulative  effect
of  all the circumstances we are of opinion that  the  will,
Ex.   B-4  was not  executed by  Veeriah  in  a  sound and
disposing  state  of  mind and was  not legally  valid and
binding upon the plaintiff.  We accordingly set  aside the
finding of the High Court on this issue.
It  is, however, not possible for us to finally dispose  of
this  appeal  because the High Court has  not  examined the
second question arising in this case, namely, whether the
Hindu Succession Act (Act XXX of 1956) is applicable to the
case  and  whether defendant no. 1 was the nearest  heir  to
succeed to the estate of the deceased Veeriah in  preference
to all others including the appellant, defendants 9 and 10.
We  therefore consider it necessary that the case should  go
back  to the High Court for hearing the parties afresh and
recording  a  finding on this question and to submit  it  to
this  Court within three months from the date of receipt  of
the  record  by the High Court.  The parties  will  not  be
allowed to give additional evidence in the case and the High
Court will submit a finding on the evidence already  adduced
by  the parties.   The appeal will be placed for  further
hearing before this Court after the finding is submitted  by
the  High  Court in accordance with the directions  we have
given.
V.P.S.       Appeal remanded.
481

Service matter = whether fixation of benchmark would amount to change in the criteria of selection in the midstream when there was no such stipulation in that regard in the advertisement.- whether there was any change in the mode of selection after the process of selection had started. - Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of “selection for appointment”. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility.” “In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.” It is stated at the cost of repetition that there is no change in the criteria of selection which remained of 80 marks for written test and 20 marks for interview without any subsequent introduction of minimum cut off marks in the interview. It is the short listing which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law.(M.P.Public Service Commission vs. Navnit Kumar Potdar & Anr. (1994) 6 SCC 293). - 18. The result of the aforesaid discussion would be to dismiss the appeals as bereft of any merit. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40656
       
   [REPORTABLE]

                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO.6799/2013
                 (arising out of S.L.P.(Civil) No. 34427/2011)


 Yogesh Yadav
  …..Appellant

            Versus

 Union of India & Ors.
 ….Respondents

 WITH

 C.A.No.6800/2013 (@ SLP(civil) Nos.6988/2012

 C.A.No.6801/2013 (@ SLP(civil) Nos.9556/2012



                       J U D G M E N T

A.K.SIKRI,J.

1.    Leave granted.

2.    Counsel for the parties were  heard  at  length  on  the  issue
involved in these cases. We now proceed to decide the  same  by  this
order.

3.    Matter pertains to appointment to the post of  Deputy  Director
(Law) in the Other Backward Class (OBC Category).
Appointments to the
vacancies in the aforesaid post were to be  made  in  the  office  of
Competition Commission of India (CCI).
The three appellants in  these
three appeals were also the candidates who appeared  in  the  written
test.
After  qualifying  the  written  test,  they  also  faced  the
interview.
However, their  names  did  not  appear  in  the  list  of
candidates finally selected.
According to the appellants, their  non-
selection was the result of altering the prescribed mode of selection
-mid-way i.e. after the initiation of recruitment process  which  was
impermissible. 
This contention has not found favour with  either  the
learned Single Judge in the Writ  Petitions  filed  by  them  or  the
Division Bench of the  High  Court  in  the  appeals  filed  by  them
challenging  the  order  of  the  learned  Single  Judge.   Bone   of
contention, before us also, remains the same.  Therefore,  the  issue
which needs to be decided is as to
whether there was  any  change  in
the mode of selection after the process of selection had started.

4.     Seminal  facts  which  are  necessitated  to  understand   the
controversy are recapitulated herein below.

5.    CCI had issued the notification  through  public  notice  dated
11th November, 2009 inviting applications for various posts.  We  are
concerned with the  post  of  Deputy  Director  (Law)  for  which  13
vacancies were notified -  9  were  in  General  category,  1  in  SC
Category and 3 posts were reserved for OBC category. Clause 7 of  the
notification stipulated  the  mode  of  selection  in  the  following
manner:

      “7.   Mode of Selection

            All the applications received by the due date will be  screened
      with reference to the minimum qualification  criteria.  From  amongst
      the eligible candidates, suitable candidates  will  be  short  listed
      through a transparent mechanism and the short listed candidates  will
      be called for interview before final selection.  Mere  fulfilling  of
      minimum qualifications by itself would not entitle any applicant  for
      being called for interview.”



6.    The eligibility / qualification /experience  required  for  this
post was also provided in the advertisement. It is undisputed that the
appellants fulfilled the eligibility condition, being holder of degree
of Bachelor of Law (Professional) as well as 3  years’  experience  in
the relevant field including in the Corporate Sector. Written test for
this post was held  on  14th  February,  2010  for  short  listing  of
candidates for interview. Admit card was also issued to the appellants
for appearing in the written test along with the detailed instructions
including the scheme  of  examination.  Paragraphs  4  and  9  of  the
Instruction which were given to the examinees/candidates are  relevant
for our purposes and therefore we reproduce the same hereunder:

            “4.  The selection to all  the  positions  advertised  will  be
      based on a written test followed by an interview.  The  written  test
      will carry 80% of the marks and interview will have 20% of the marks.
      The written test will be in two parts. The first part will  be  based
      on multiple choice questions for  50  marks.  There  is  no  negative
      marking in this multiple choice questions. The second  part  carrying
      30 marks will be distributed to  the  descriptive  questions  on  the
      subject of your  specialization  within  the  broad  outline  of  the
      subject of specialization as indicated in the advertisement.

            Xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

            9.   Candidates who do not secure 50% of the marks in the  test
      will not  be  called  for  the  interview.  However,  for  candidates
      belonging to the reserved categories, the cut off marks will  be  40%
      of the total marks.”





 7.   Written examination was of 80 marks and the appellants  secured
more than 50% marks therein. They were called for the interview which
was held on 19th March 2010 and the result of which was published  on
the website of the CCI. Finally, only 5 candidates, that too from the
General category, were selected.   Nobody from the OBC  category,  to
which category  the  appellants  belonged,  emerged  successful.   On
obtaining the information from the respondents  under  the  Right  to
Information Act 2005, the appellant in CA___/2013 (@SLP(C) No.  34427
of 2011) came to know that he had secured only  2  marks  out  of  20
marks in the interview. In this manner, total marks  secured  by  him
were 53 out of 100 marks. He also learnt  that  the  respondents  had
fixed the benchmark of 70 marks for the General Category and 65 marks
for the Reserved Category candidates. Since the total marks  obtained
by all these appellants were less than 65, that was  the  reason  for
their non selection. It is  this  fixation  of  benchmark  which  has
agitated the appellants and according to them it amounts to  changing
the selection procedure mid-way, which is illegal.

8.    The appellants approached the High Court of Delhi by  filing  a
Writ Petitions challenging their  non-  selection  primarily  on  the
ground that the selection criteria was changed arbitrarily  that  too
after the advertisement and the law did not permit the respondents to
change the rules of the game after the game had started. The  precise
contention in this behalf was that the benchmark which was  fixed  at
70 and 65 marks  or  above  in  the  General  and  Reserved  category
respectively for the purposes of selection was not mentioned  earlier
i.e.  before  the  start  of  selection  process,   either   in   the
advertisement or otherwise.

9.    The Writ petitions were contested by the  respondents.  In  the
counter affidavit filed by the CCI, it was explained that  there  was
an overwhelming response received from the candidates  for  selection
to the aforesaid post and  having  regard  to  the  large  number  of
applications received, the CCI decided to undertake the selection  to
all posts notified in the advertisement on the basis of written  test
followed by interview and accordingly it was determined that  written
test would be  for  80  marks  while  20  marks  were  attributed  to
interview. Further, candidates who secured minimum of 50 marks in the
written test in the General category and minimum of 40 marks  in  the
reserved category were called for interview in  the  ratio  of  three
times of the number of vacancies where the number of  vacancies  were
more than 10 and 5 times of the number of the vacancies for less than
the 10. The marks obtained in the written test were not disclosed  to
the interview committee and the committee independently  and  without
being influenced by the marks obtained in the written  test  adjudged
the candidates on the basis of Viva Voce test and awarded the  marks.
The marks of the written test, which were kept in the  sealed  cover,
were opened after the marks given to candidates in the  interview  by
the  interview  board  and  tabulated   merit   list   was   prepared
accordingly. The CCI, keeping in view the nature and purpose  of  the
post, decided to fix the percentage for final selection were 70 marks
out of 100 for unreserved Category and minimum 65 marks  out  of  100
for reserved category for professional categories in  which  category
the post of Deputy Director (Law) falls.   It was argued that such  a
course of action was permissible and it was not a case where the mode
of selection, at any time was changed and in so far  as  fixation  of
benchmark  is  concerned  that  was  prerogative  of  the   employer.


10.   The learned Single Judge of the High Court accepted the plea of
the respondents as he did not perceive  this  to  be  the  change  in
criteria in the selection procedure, holding  that  fixation  of  the
benchmark was legal and justified.   As  pointed  out  above,  Letter
Patent Appeals filed by the appellants  against  the  learned  Single
Judge have also met the same fate.

11.    In  the  aforesaid  backdrop,  the  question  that  falls  for
consideration is as to
whether fixation of benchmark would amount  to
change in the criteria of selection in the midstream when  there  was
no such stipulation in that regard in the advertisement.

12.   Mr. Jayant Bhushan, the learned senior  counsel  appearing  for
one of the appellants submitted that the case is squarely covered  by
the ratio of judgment of this Court  in  Himani  Malhotra   vs.  High
Court of Delhi (2008) 7 SCC 11.  That case pertained  to  recruitment
to the Higher Judicial Service in Delhi.  The mode of  selection  was
written test and viva voce.  250 marks were assigned for written test
and 750 marks prescribed for viva voce test.  When the  advertisement
was given there was no stipulation prescribing minimum marks/cut  off
marks at viva voce test after the written test was held.  The persons
who qualified the written test were called for interview.   Interview
was, however, postponed by the interview committee and it  felt  that
it was desirable to prescribe minimum marks for the viva voce test as
well.  The matter was placed before the Full  Court  and  Full  Court
resolved to fix minimum qualifying marks in viva voce which were  55%
for general category, 50% for SC/ST candidates.   After  this  change
was effected in the criteria thereby prescribing fixation of  minimum
qualifying marks, the interviews were held. The petitioners  in  that
case were not selected as they secured less than 55 %  marks.   Those
two petitioners filed the Writ Petition submitting  that  prescribing
minimum cut off marks in the viva  voce  test,  after  the  selection
process had started, when there was no such stipulation at  the  time
of  initiation  of   recruitment   process,   was   unwarranted   and
impermissible.  The Court, taking notice of its earlier judgments  in
Lila Dhar vs. State of Rajasthan (1981) 4 SCC 159 and K.Manjusree vs.
State of A.P. (2008) 3 SCC 512 held that when the previous  procedure
prescribing minimum marks  was  not  permissible  at  all  after  the
written test was conducted, the ratio of the case  is  summed  up  in
paragraph 15 of the Judgment, as under:

      “15. There is no manner of doubt  that  the  authority  making  rules
      regulating the selection can prescribe by  rules  the  minimum  marks
      both for written examination and viva voce, but if minimum marks  are
      not prescribed for viva voce before  the  commencement  of  selection
      process, the authority concerned, cannot either during the  selection
      process  or  after  the   selection   process   add   an   additional
      requirement/qualification  that  the  candidate  should  also  secure
      minimum marks in the interview.  Therefore,  this  Court  is  of  the
      opinion that prescription of minimum marks by the respondent at  viva
      voce test was illegal.”




 13.  This very argument based on the aforesaid judgment was taken in
 the LPAs before the High Court as well.   However,  the  High  Court
 took the view that the aforesaid judgment was not applicable in  the
 instant case as  the  factual  scenario  was  altogether  different.
 Since we are agreeing with the view of the High Court, it  would  be
 apposite to take notice of the relevant discussion on this aspect:

            “18. From the aforesaid pronouncement of law, it is vivid  that
      an amended rule cannot affect  the  right  of  a  candidate  who  has
      qualified as per the terms stipulated in  the  advertisement  and  is
      entitled to claim a selection in accordance with the  rules  as  they
      existed on the date of the advertisement; that the selection  can  be
      regulated by  stipulating  a  provision  in  the  rule  or  laying  a
      postulate in the advertisement for obtaining minimum  marks  are  not
      prescribed for viva voce before the  commencement  of  the  selection
      process, the authority, during the selection  process  or  after  the
      selection process, cannot add an additional requirement/qualification
      that the candidate should also secure minimum marks in the interview;
      that the norms or rules as existing on the date  when the process  of
      selection begins will control such selection and that revisiting  the
      merit list by adopting a minimum percentage of marks for interview is
      impermissible.

            19.  The factual scenario in the present case has  a  different
      backdrop.   The  advertisement  stipulated  that  the  short   listed
      candidates would be called for interview before the  final  selection
      and mere fulfilling of minimum qualifications  by  itself  would  not
      entitle any applicant for being called for interview. Thereafter,  in
      the instruction, the marks were divided.  Regard  being  had  to  the
      level of the post and the technical legal aspects which are  required
      to be dealt with, a concise decision was taken to fix 65%  marks  for
      OBC category in toto, i.e., marks obtained in the written examination
      and marks secured in the interview.  It  is  not  a  situation  where
      securing of minimum marks was introduced which was not stipulated  in
      the  advertisement.   A  standard  was  fixed  for  the  purpose   of
      selection.”




14.   Instant is not a case where no  minimum  marks  prescribed  for
viva voce and this is sought to be done after the written  test.   As
noted above, the instructions to the examinees provided that  written
test will carry 80%  marks  and  20%  marks  were  assigned  for  the
interview.  It was also provided that candidates who secured  minimum
50% marks in the general  category  and  minimum  40%  marks  in  the
reserved categories  in  the  written  test  would  qualify  for  the
interview.  Entire selection was undertaken in  accordance  with  the
aforesaid criterion which was laid down at the  time  of  recruitment
process.  After conducting the interview, marks of the  written  test
and viva voce were to be added.  However,  since  benchmark  was  not
stipulated for giving the appointment.  What is done in  the  instant
case is that a decision is taken to give appointments only  to  those
persons who have secured 70% marks or above marks in  the  unreserved
category and 65% or above marks in the reserved  category.    In  the
absence of any rule on this aspect in the first instance,  this  does
not amount to changing the “rules of the game”.  The High  Court  has
rightly held that it is not a situation  where  securing  of  minimum
marks was introduced which was not stipulated in  the  advertisement,
standard was fixed for the purpose of selection.   Therefore,  it  is
not a case of changing the rules of game.  On  the  contrary  in  the
instant case a decision is taken to give appointment  to  only  those
who fulfilled the benchmark prescribed. Fixation of such a  benchmark
is permissible in law. This is an altogether different situation  not
covered by Hemani Malhotra case.

15.   The decision taken in the instant case amounts to short listing
of candidates for  the  purpose  of  selection/appointment  which  is
always  permissible.  For  this  course  of  action   of   the   CCI,
justification is found by the High Court  noticing  the  judgment  of
this Court in the State of Haryana vs. Subash Chander Marwaha &  Ors.
(1974) 3 SCC 220.  In that case, Rule 8 of the Punjab  Civil  Service
(Judicial  Branch)  Service  Rules  was   the   subject   matter   of
interpretation.  This rule stipulated consideration of candidates who
secured 45% marks in aggregate. Notwithstanding the  same,  the  High
Court recommended the names of candidates who had secured  55%  marks
and the Government accepted the same.  However, later on  it  changed
its mind and High Court issued Mandamus directing appointment  to  be
given to those who had secured 45% and above  marks  instead  of  55%
marks.  In appeal, the judgment of  the  High  Court  was  set  aside
holding as under:

             “It  is  contended  that  the  State  Government  have   acted
      arbitrarily in fixing 55 per cent as the minimum  for  selection  and
      this is contrary to the rule referred to above. The argument  has  no
      force.
Rule 8 is a step in the preparation  of  a  list  of  eligible
      candidates with minimum qualifications  who  may  be  considered  for
      appointment. The list is prepared in order of merit. The  one  higher
      in rank is deemed to be more meritorious than the one who is lower in
      rank. It could never be said that one who tops the list is  equal  in
      merit to the one who is at the bottom of the list. Except  that  they
      are all mentioned in one list, each one of them stands on a  separate
      level of competence as compared  with  another.   
That  is  why  Rule
      10(ii), Part C speaks of “selection for appointment”.  Even as  there
      is no constraint on the State Government in respect of the number  of
      appointment  to  be  made,  there  is  no  constraint  on  the  State
      Government in respect of the number of appointments to be made, there
      is no constraint on the Government fixing a higher   score  of  marks
      for the purpose of selection. In a case where appointments  are  made
      by selection from a number of eligible candidates it is open  to  the
      Government   with a view to maintain high-standards of competence  to
      fix a score which is much higher  than  the  one  required  for  mere
      eligibility.”




16.   Another weighty reason given by the High Court in  the  instant
case, while approving the aforesaid action of the CCI,  is  that  the
intention of the CCI was to get more meritorious  candidates.
There
was no change of norm or procedure and no mandate was  fixed  that  a
candidate should secure minimum marks in the interview.
In order to
have meritorious persons for those posts,  fixation  of  minimum  65%
marks for selecting a person from the OBC category  and  minimum  70%
for general category, was legitimate giving a demarcating  choice  to
the employer. In the words of the High Court:

            “In the case at hand, as we  perceive,  the  intention  of  the
      Commission was to get more meritorious candidates.  There has been no
      change of norm or procedure. No mandate was fixed  that  a  candidate
      should secure minimum marks in the interview.  Obtaining of 65% marks
      was thought as a guidelines for selecting the candidate from the  OBC
      category. The objective is to have the best hands  in  the  field  of
      law. According to us, fixation of such marks is legitimate and  gives
      a demarcating choice to the employer. It has to be borne in mind that
      the requirement of the job in a Competition Commission demands a well
      structured selection process.  Such a  selection  would  advance  the
      cause of efficiency. Thus scrutinized, we do not perceive  any  error
      in the fixation of marks at 65% by  the  Commission  which  has  been
      uniformly applied.  The said  action  of  the  Commission  cannot  be
      treated to be illegal, irrational or illegitimate.”



17.   It is stated at the cost of repetition that there is no  change
in the criteria of selection which remained of 80 marks  for  written
test and 20 marks for interview without any  subsequent  introduction
of minimum cut off marks in the interview.  It is the  short  listing
which is done by fixing the benchmark, to recruit best candidates  on
rational and reasonable basis.  That is clearly permissible under the
law.(M.P.Public Service Commission vs. Navnit Kumar  Potdar   &  Anr.
(1994) 6 SCC 293).

-

18.   The result of the aforesaid discussion would be to dismiss  the
appeals as bereft of any merit.  No costs.

                                       ……………………………J.
                                       ( Anil R. Dave)



                                       ……………………………J.
                                       ( A.K.Sikri)
  New Delhi
  Dated:  16th August, 2013