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Bhimrao Gururao Deshpande and anr. Vs. Pralhad Subbarao Mutalik Deshpande and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 2409 and 2410 of 1966
Judge
Reported inAIR1973Kant98; AIR1973Mys98
ActsBombay Pargana and Kulkarni Watans (Abolition) Act, 1950 - Sections 3(3); Watan (Bombay Hereditary Offices) Act, 1874 - Sections 4 and 5; Bombay Land Revenue Code - Sections 3(11)
AppellantBhimrao Gururao Deshpande and anr.
RespondentPralhad Subbarao Mutalik Deshpande and ors.
Appellant AdvocateV. Krishna Murthy, Adv.
Respondent AdvocateR.M. Patil, Adv.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 168 & 173; [ram mohan reddy, j] compensation appeal against - claimant was an in-patient in the hospital for 13 days non-examination of the doctor who treated the claimant at the general hospital - uncorroborated medical certificate which certifies that the claimant sustained fractures of the 6th, 7th and 8th ribs held, tribunal fell in serious error and occasioned grave injustice to the appellant in not properly appreciating the evidence both oral and documentary before concluding that the claimant suffered from fractures of the 6th, 7th and 8th ribs in the accident that occurred. thus it goes without saying that disability cannot be believed and is unacceptable. compensation of rs. 1,49,000/- awarded by tribunal was reduced to.....datar, j. 1. the question that hag been referred to the full bench lies within a very narrow compass. it relates to the interpretation of the provisions of the bombay pargana and kulkarni watans (abolition) act. 1950. (hereinafter referred to as the act). it became necessary to refer this question to the full bench, because, the provisions of this act have received two different interpretations which are inconsistent with each other. 2. for the purpose of a proper appreciation of the questions involved in the case, it is necessary to set out the few admitted facts: the lands in question are situated in aralikatte, aminabhavi and karadiguddi villages in the district of dharwar and formed part of a paragana watan of which one nareswamyrao was the watandar. he had two sons by name swamy rao.....
Judgment:

Datar, J.

1. The question that hag been referred to the Full Bench lies within a very narrow compass. It relates to the interpretation of the provisions of the Bombay Pargana and Kulkarni Watans (Abolition) Act. 1950. (hereinafter referred to as the Act). It became necessary to refer this question to the Full Bench, because, the provisions of this Act have received two different interpretations which are inconsistent with each other.

2. For the purpose of a proper appreciation of the questions involved in the case, it is necessary to set out the few admitted facts: The lands in question are situated in Aralikatte, Aminabhavi and Karadiguddi villages in the district of Dharwar and formed part of a paragana watan of which one Nareswamyrao was the Watandar. He had two sons by name Swamy Rao and Guru Rao and there was a partition between them in or about the year 1844. The lands in question were allotted to the share of Swamy Rao. As Swamy Rao's branch became extinct, Bhima Rao and Rama Rao, the two sons of Guru Rao, became entitled to the rights in the properties allotted to the share of Swamy Rao. It appears nearly 150 years back the properties in question were given away to the respondents' predecessors-in-interest for Mutalik and priestly service and since then the predecessors-in-title of the petitioners have not been in possession of the lands. However, on the coming into force of the Act. petitioners made application for regnant. The sole basis for claiming regnant of the lands is that they belong to the watan family and thus are entitled to regnant. Having lost their case before the Revenue authorities the petitioners have filed these writ petitions. The case of the respondents in W. P. No. 2409 of 1966 is that the two lands in question had been granted by Naroswamyrao to their ancestors in lieu of the Mutalik service rendered by them. The case of the respondents in W. P. 2410 of 1966 is that the three other lands were given to their ancestors by Naroswamyrao for rendering priestly service. Their case, therefore, is that they and their predecessors-in-interest wore in lawful possession of the lands in question from the time of Tippu Sultan, who died in 1799, and that they are entitled to continue to remain in possession of the same. Their further case is that on the coming into force of the Act. the members of the family of the Watandar do not become entitled to the regnant of the lands which had been alienated long back. The claim of the petitioners has been negatived and so they have come up before this court with these writ petitions.

3. The submission made on behalf of the .petitioners before the Division Bench was that having regard to the decision of this Court in Rango Annaji Desh Kulkarni v. Annacharya Narasimhacharya, (1965) 2 Mya LJ 685 their claim had been improperly rejected. The respondents however relied upon the judgment in Subhadrabai v. Bhimabai, (C. P. No. 79 of 1961 decided on 14-11-1962 (Mys)). The Division Bench noticed the conflict of views on the question and was of the view that the decision in Subhadrabai's case laid down the law correctly. In these circumstances, the Division Bench referred the following two questions for answer:--

'(i) Whether a person who has no sort of subsisting interest in a watan land can be considered as a holder of a watan and whether such a person is entitled to the regnant of a watan lend under Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act. 1950?

(ii) Whether a person who Is in lawful possession of a watan land as an alienee from the watandar or as a successor-in-interest of such an alienee, though the alienation in his favour or in favour of his predecessor-in-interest, as the case may be, was prior to and not made in accordance with Section 5 of the Watan Act (The Bombay Hereditary Officers' Act. 1874), is entitled to the regnant of such land under Section 4 of the Bombay Paragana & Kulkarni Watans (Abolition) Act, 1950?'

4. In the referring order it has been stated that the petitioners could not evict the respondents from the possession of the lands immediately before the coming into force of the Act and that the possession of the respondents was lawful. It is also not disputed that over a century none of the Watandars had been in possession of the lands, but on the other hand respondents and their predecessors-in-interest have all along been in possession of the lands. It is also not claimed by the petitioners that they had any subsisting interest in the lands immediately before the coming into force of the Abolition Act. In these circumstances, the question for consideration by us is whether the petitioners, having regard to the provisions of the Act. are entitled to regnant in their favour, or, whether the respondents are entitled to regnant.

5. Before we refer to the decisions cited at the bar. it would be appropriate to set out the relevant provisions of the Act and consider their effect. Section 2 (b) defines 'Code' as the Bombay Land Revenue Code 1879. Section 2 (d) defines 'Kulkarni Watan' as a watan appertaining to the office of a village accountant and includes a watan appertaining to the said office in respect of which e commutation has been effected. Section 2 (e) defines 'Paragana Watan' as a watan appertaining to the office of a hereditary District (Paragana) Officer in respect of which a commutation settlement has been effected and includes the Deshpande watan of the Nimbayat mahal in Malegaon Taluka of the Nasik District and the Deshmukh watan of the Borapada village in the Navapur Taluka of the West Khandesh District, Section 2 (2) reads as under:

'2. (2) The words end expressions used in this Act shall have the meanings assigned to them in the Watan Act and in the Code, as the case may be, notwithstanding the fact that the provisions of the said Act or Code may not! be applicable'.

Section 3 reads as under:

'3. With effect from and on the appointed day, notwithstanding anything contained in any law. usage, settlement, grant, sanad or order

(1) all paragana and Kulkarni watans shall be deemed to have been abolished;

(2) all rights to hold office and any liability to render service appertaining to the said watans are hereby extinguished;

(3) subject to the provisions of Section 4. all watan land Is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if It were an unalienated land:

Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of Section 5 of the watan Act or the rights of an alienee thereof or any person claiming under or through him: (4) all incidents appertaining to the said watans are hereby extinguished.'

Section 4 reads as under:

'4. (1) A watan land resumed under the provisions of this Act shall subject to the provisions of Section 4-A, be regnanted to the holder of the watan to which it appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land within five years from the date of the coming into force of this Act and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the Rules made thereunder; all the provisions of the Code and the rules relating to unalienated land shall, subject to the provisions of this Act, apply to the said land:

Provided that in respect of the watan land which has not been assigned towards the emoluments of the Officiater, occupancy price equal to six times of the amount of the full assessment of such land shall be paid by the holder of the land for its regnant:

Provided further that if the holder fails to pay the occupancy price within the period of five years as provided in this section, he shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected In accordance with the provisions of the Code.

(2) The occupancy of the land re-granted under Sub-section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine.

(3) Nothing in Sub-sections (1) and (2) shall apply to any land-

(a) the commutation settlement In respect of which provides expressly that the land appertaining to the watan shall be alienable without the sanction of the State Government; or

(b) which has been validly alienated with the sanction of the State Government under Section 5 of the Watan Act,

Explanation:-- For the purposes of this section the expression 'holder' shall include:

(i) all persons who on the appointed day are the watandars of the same watan to which the land appertained, and

(ii) in the case of watans the commutation settlement in respect of which permits the transfer of the land appertaining thereto, a person in whom the ownership of such land for the time being vests'.

6. The Act was enacted to abolish the Paragana and Kulkarni Watans in the State of Bombay. In the preamble, it has been stated that the services appertaining to the office of hereditary District (Paragana) Officers and or the Office of certain hereditary village accountants (Kulkarnis) have ceased to be performed. The remaining hereditary officers are no longer required and therefore it was necessary to pass an Act. From a perusal of the provisions of the Act, it is clear that the primary object of the Act is,

(1) to abolish the hereditary offices and

(2) to change the nature of tenure of the land. In the Slate of Bombay there were what were known as alienated or unalienated lands, i. e. ryotwari lands. Regarding the lands alienated or granted, the State Legislature wanted to abolish alienations and treat them like other unalienated lands i. e., Ryotwari lands. That is why it was stated in Section 3 (3) of the Act that the watan lands resumed by the Act shall be deemed to be subject to the payment of land revenue under the provisions of the Bombay Land Revenue Code. This was emphasised again in Section 4 of the Act. After providing that the land shall be regnanted, it was stated that the person to whom it is regranted shall be deemed to be an occupant within the meaning of the Code. We are firmly of the view that by this Act, the Legislature did not intend to take away the property lawfully vested in one person and give it to others.

7. Having regard to the provisions of Section 2 (2) of the Act, the words and expressions used in the Act shall have the same meaning assigned to them in the Watan Act and in the Code, notwithstanding the fact that the provisions of the said Act or Code may not be applicable. From a perusal of the provisions of the Act, it is clear that the expression 'holder of the watan' has not been defined by the Act although the explanation to Section 4 of the Act explained that the expression 'holder' includes a person who was a watandar of the same watan on the appointed day as also a person in whom the ownership of such land for the time being is vested. Therefore, for the the purpose of finding out the meaning of the word 'holder' occurring in Section 4 of the Act. we have to look into the definition of the word 'holder' In the Bombay Land Revenue Code. Under Section 3 (11) of the Bombay Land Revenue Code. It is stated as follows :--

'3. In this Act, unless there be something repugnant in the subject-matter or context,--

(11) 'to hold land', or to be a 'landholder' or 'holder' of land means to be lawfully in possession of land, whether such possession is actual or not;'

It is in the light of the provisions enumerated above that the questions raised have to be determined.

8. Sri V. Krishnamurthy learned counsel appearing for the petitioners, very strenuously urged that the only kind of alienations that were saved from the operation of the Act were the alienations covered by the proviso to Section 3 (3) of the Act. He urged that the alienations not covered by the proviso were ineffective and that by this Act all unauthorised alienations were rendered null and void so as to entitle the watandar to obtain regnant and on that basis restoration of the lands. Therefore, we| have first to consider to what extent the submission of Sri Krishnamurthy can be acccepted. The proviso to Section 3 (3) of the Act clearly states that the resumption which takes effect under Section 3 (3) of the Act shall not affect the validity of any alienation of such watan land made in accordance with Section 5 of the Watan Act or the rights of an alienee thereof or any person claiming under through him. The reason for the enactment of the said provision is that under Section 5 of the Watan Act. alienations which came thereunder were protected and the Legislature did not intend to effect such valid alienations. That is why it was enacted that so far as the lands which have been validly alienated in accordance with Section 5 of the Watan Act. even though that Act is abolished, those lands shall not stand resumed. Consequently, the provisions of Section 4 of the Act regarding regnant do not apply. In the proviso, provision was not made regarding the other alienations. So far as all lands other than one covered by the proviso are concerned, they all stand resumed and regnant has to be made in accordance with the provisions of Section 4 of the Act. The proviso to the said section came up for consideration before this Court in Bhimaji Mudlagiri Kulkarni v. Laxman Venkatesh Kulkarni, (1966) 2 Mys LJ 230. Hegde, J. (as he then was) after consideration of all the aspects observed as follows:--

'In view of Sub-sections (1) and (2) of Section 3 of the Act, all Paragana and Kulkarni Watans are deemed to have been abolished and all rights to hold office and liability to render service appertaining to the said watans are extinguished from the date the Act came into force. This is true of all watans, whether any of the watan lands had been validly alienated in accordance with the provisions in Section 5 of the Watan Act or not. Sub-section (3) of Section 3 of the Act provides that subject to the provisions of Section 4 all watan lands stand resumed from the date the Act came into force and thereafter they shall be deemed to be subject to payment of land revenue under the provisions of the Bombay Land Revenue Code and the rules made thereunder as if they were unalienated lands. But the proviso to that Sub-section takes out a portion of the field covered by the Sub-section for special treatment. To that extent, the proviso in question is an exception to the provisions contained in Sub-section (3) of Section 3. That proviso provides that the resumption contemplated by Section 3 (3) shall not affect the validity of any alienations of a watan land made in accordance with the provisions of Section 5 of the Watan Act or the rights of an alienee thereof or any person claiming under or through him. The resulting position is that the watans falling within the scope of the proviso though stand abolished and that all rights to hold office and any liability to render service appertaining to the said watans are extinguished yet they do not stand resumed under Section 3 (3). Hence in the case of watan lands that have been validly alienated under Section 5 of the Watan Act there is no question of any resumption. The alienee's rights under law are fully protected. In fact, under the provisions of the Act he had acquired better rights, After the Act the lands purchased have ceased to be watan lands. Now they are subject to the payment of land revenue under the provisions of the Bombay Land Revenue Code and the rules made thereunder as if they are unalienated lands. This position is made further clear by clause (b) of Sub-section (3) of Section 4 of the Act. Section 4 (1) provides for the regnant of the lands resumed under subsection (3) of Section 3. Sub-section (2) of Section 4 imposes certain restrictions on the rights of the grantee. But Sub-section (3) of Section 4 to the extent it is material for our present purpose says that nothing in Sub-sections (1) and (2) of Section 4 shall apply to any land which has been validly alienated with the sanction of the State Government under Section 5 of the Watan Act. This provision supports my earlier conclusion that the lands which had been validly alienated are not subject to resumption under Sub-section (3) of Section 3. There is no provision for restraint of those lands. Section 4 (3) specifically provides that nothing in Sub-sections (1) and (2) of Section 4 are applicable to lands that had been alienated with the sanction of the State Government under Section 5 of the Watan Act. It is true that as between the language employed in the proviso to Sub-section (3) of Section 3 and that employed in Clause (b) of Sub-section (3) of Section 4 there is some difference. The former speaks of any alienations of land made in accordance with the provisions of Section 5 of the Watan Act whereas the latter speaks of an alienation validly made with the sanction of the State Government under Section 5 of the Watan Act. Read by itself, Section 4 (3) (b) can be said to contemplate a specific sanction by the State Government. If that Proviso is interpreted in that manner then there would be conflict between that provision and the proviso to Sub-section (3) of Section 3. regnant under Section 4 can only be made of the resumed land. In view of the proviso to Sub-section (3) of Section 3. it must be held that there was no resumption of lands validly alienated and further the alienee's rights were completely protected by that proviso. Therefore, it is reasonable to construe that all alienations made in accordance with the provisions contained in Section 5 of the Watan Act are valid alienations and they may be deemed to have been made with the sanction of the State Government. The required sanction is given by the legislature itself.'

With respect we agree that this is the proper and correct interpretation of the proviso to Section 3 (3) of the Act. The result is that all Paragana and Kulkarni watan lands, other than those covered by the proviso are governed by the Act, and that all those lands stand resumed andthey have to be regranted in accordancewith the provisions of the Act.

9. Section 4 of the Act states that the lands resumed shall be regranted to the holder of the watan to which it appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land within five years from the date of the coming into force of the Act and the holder shall be deemed to be an occupant within the meaning of the Code. In our opinion the word 'regnant' and the expression 'holder of the watan to which it appertained' occurring in Section 4 furnish the key to the solution of its true construction. In Webster's New International Dictionary (Vol. 2) at page 2098, the meaning given to the word 'regnant' is 'A granting again, as back to a former proprietor, or by way of renewal of a grant'. So the meaning of the word 'restraint' is granting back to a former proprietor. The lands in question were not resumed from the petitioners but were resumed from the respondents. So the grant obviously has to be to the person from whom the lands have been resumed. The resumption being not from the petitioners, they are not entitled to regnant. as regnant has to be to the former proprietor. Petitioners have ceased to be the proprietors of the lands long before the resumption and the respondents are the persons who were lawfully in possession. We have already stated that the object of the Act was not to take away the property of one A and give it to B. The primary object was, as already stated, the abolition of the services as also the tenure of the land and that is why it has been emphasised that when regnant is made the holder shall be deemed to be as occupant within the meaning of the Code.

10. It is also necessary to bear in mind that by Section 3 of the Act all the Paragana and Kulkarni watans were abolished; right to hold office and liability to render service appertaining to the said watans were extinguished. It is only by Sub-section (31 of Section 3 of the Act that watan land was resumed, which was subject to the provisions of Section 4 of the Act. The Legislature did not intend to resume land from A and grant the same to B. That is why Section 4 of the Act states that the resumed land shall be regranted. In our opinion, the Legislature in enacting Section 4 did not intend to deal with the watan office but was only dealing with the lands that were held under Watan tenure. If the expression 'holder' means 'person who is lawfully in possession of the lands'. it would be appropriate to give the expression the meaning 'holder of the watan land'. Although Section 4 (1) of the Act contains the expression 'holder of watan', there can be little doubt that when the Legislature employed the expression 'holder of the watan' it had in its mind 'the holder of a watan land'. That this is the true construction to be placed upon Section 4 (1) is clear from the sub-section which opens with the words 'A watan land' and also the fact that the occupancy price payable by the applicant for regnant is referred to as 'twelve times of the amount of the full assessment of such land'. Therefore, we have to understand the expression 'holder of the watan' occurring in Section 4 (1) as referring to the holder of the watan land and the word 'holder' in Section 4 (1) has to be given the same meaning viz., the meaning given in Section 3 (11) of the Bombay Land Revenue Code. In our opinion, the expression 'holder of the watan' occurring in Section 4 (1) of the Act, therefore, means a person who is lawfully in possession, whether such possession is actual or not. This interpretation finds further support from the scheme of Section 4 (1) wherein it is provided that if the holder fails to pay the occupancy price within the period of five years as provided in the section, he shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected in accordance with the provisions of the Code. The two provisos to Sub-section (1) of Section 4 make it abundantly clear that the regnant could be made only to the person in possession of the land. Othersise, there would be no meaning in the second proviso stating that if the holder fails to pay the occupancy price within the stipulated period he should be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected in accordance with the provisions of the Code. There can be no eviction of a person who is not in possession of the land. It is also significant that the Act does not provide for the eviction of persons like the respondents for restoration to persons in the position of petitioners.

11. The learned counsel for the petitioners, however, submitted that this would not be the correct view to take having regard to the judgment of the Supreme Court in Collector of South Satara v. Laxman Mahadev Deshpande, : [1964]2SCR48 . That was a case in which the application was made by the respondent in the case for compensation under Section 9 of the Act. The assessment of compensation was refused, but the High Court of Bombay set aside that order and directed the officer to assess the compensation. Their Lordships of the Supreme Court were considering the interpretation of the words of Section 9 of the Act. This is clear from the questions posed by the Court for consideration in paragraph 8 of the Judgment. The Court for the purpose of appreciating that contention has set out several provisions of the Act. Reliance was. however, placed upon the following passage:

'The State having created the watan, is entitled to put an end to the watan i. e., to cancel the watan and to resume the grant'.

It is necessary to remember that this is what is laid down in Bachharam's case end that this observation was made by the Supreme Court while considering the question of the effect of Gordon Settlement and that is why it has been further stated that if there be mere commutation of service, the watan office ordinarily survives without liability to perform service, and on that account the character of watan property still remains attached to the grant. But the State Government may abolish the office and release the property from its character as watan property. Therefore, it would be wholly wrong to ignore the wordings of the provisions of Sections 3 and 4 of the Act end to state that the State was entitled to cancel the watan and the same having been cancelled, the State intended to grant the lands to the original watandars and not to the persons who were in lawful possession of the lands. When the State Government has not taken any action under Section 22 of the Watan Act and destroyed the right of the watandars, but made a provision for regnant end it is that legislative provision contained in Section 4 that has to be looked into for the purpose of bringing out the true intention of the Legislature. That is why it has been stated by their Lordships of the Supreme Court that 'where the abolition of the watan is not by executive action, but by legislative decree, its consequences must be sought in the statute which effectuated the abolition'. Therefore, the decision of the Supreme Court relied on is not of any assistance for the purpose of finding out as to the right persons who are entitled to regnant.

12. There are three decisions of this Court in which this question has been considered. The earlier is the judgment in C. P. No. 79 of 1961, D/- 14-11-1962 (Mys). In that case, this Court took the view that 'holder of the watan' occurring in Section 4 (1) of the Act meant ''holder of watan land' and for arriving et this conclusion, the Court relied upon the .provisions of the Code. In our view, this decision lays down the law correctly.

13. The next case is (1965) 2 Mys LJ 685 where the Court took the view, contrary to the one which has been taken in Subhadrabai's case. In Rango Annaji Desh Kulkarnis's case, their Lordships observed that the Division Bench in C. P. No, 79/61 had not considered all the aspects and it could not be of any assistance on the question which the Court had determined, and therefore, they took the view that a person entitled to regnant was a person who was holder of the Watan land; if his possession was to be considered as lawful he should either be watandar of the same watan or should be an alienee who was in possession of the land under an alienation validly made under Section 5 of the Watan Act. Similar view has also been taken by another Bench of this Court in Rangacharya Ramacharya Joshi v. Virupax Karvir Kulkarni, (1971) 2 Mys LJ 45. It may be noticed that in Rangacharya's case, the Court did not make any reference to the two earlier Bench decisions. The Bench merely referred to the judgment of the Supreme Court in : [1964]2SCR48 and stated as follows:

'Such being the clear legal effect of what is described as the resumption of watan, we do not think that it is open for any person in the position of Joshi in these cases to claim the right of holding the lands despite or in opposition to the Government's right of resumption.' In our judgment, the entire question has been misunderstood. It was not contended in that case that there was no resumption of the watan as provided under Section 3 (3) of the Act. Since the alienations made in the case do not come within the proviso of Section 3 (3) of the Act. the lands stand resumed. But. under Section 4 of the Act. the Legislature has provided that the lands so resumed shall be regranted and the question was as to whether the petitioners were entitled to claim regnant. It may be noticed that this aspect of the matter has not been fully considered or discussed in that case.

14. In the view that we have taken of the several provisions of the Act, it is clear that the words 'holder of the watan' must necessarily mean under Section 4 as 'holder of the watan land'. Hence, our answer to the questions referred to the Full Bench are as follows:

(1) A person who has no sort of subsisting interest in a watan lend cannot be considered as a holder of a watan and such a person is not entitled to the re-grant of the watan land under Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act. 1950; and

(2) A person who is In lawful possession of a watan land as an alienee from the watandar or as a successor-in-interest of such an alienee, though the alienation in his favour or in favour of his predecessor-in-interest, as the case may be. was prior to and not made in accordance with Section 5 of the Watan Act (The Bombay Hereditary Offices Act. 1874), is entitled to the regnant of such land under Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950.

The result is that the decisions In (1965) 2 Mys LJ 685 and (1971) 2 Mys LJ 45 stand overruled.


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