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K.S. Moulvi Mohammad Hasan Vs. B. Gajadhar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All313
AppellantK.S. Moulvi Mohammad Hasan
RespondentB. Gajadhar Prasad and ors.
Excerpt:
.....well known that taluqdars pay large amounts of revenue. it was therefore appropriate that for the agra landholders' constituency as well the payment of a large amount of revenue in one's own personal right should be a necessary condition and that the combined income of a large number of members of a joint family should not be considered to be sufficient. special constituencies are four in number and yet it is significant that in none of the rules except rule 11 there is a proviso like this. the contrast in the phraseology used in clauses (b) and (c) on the one hand and (d) on the other shows clearly that the members elected by the united provinces council must be members of the legislative council, whereas the members elected by the british indian association of the agra zamindars'..........question has been referred to this full bench:whether a person who does not pay in his own right land revenue of rs. 1,500 per annum but who is a member of a joint hindu family paying land revenue amounting to more than rs. 5,000 is eligible for election to the court of wards or the agra province zamindars' association under section 4, united provinces court of wards aot read with rule 5 of the rules of the agra province zamindars' association and the united provinces electoral rules?4. the dispute is as regards the eligibility of respondent, mr. gajadhar prasad, advocate. admittedly he does not pay land revenue or under-proprietary rent amounting to rs. 1,500 in respect of any property which is exclusively his own, nor is he in receipt of any maintenance allowance of at least rs......
Judgment:
ORDER

Sulaiman, C.J.

1. A preliminary objection was taken to the reference that the whole case ought to have been referred to the Pull Bench. For some years a practice had undoubtedly grown up in this Court to refer questions of law to a Full Bench as distinct from the whole case. This practice was obviously based on convenience so that the authoritative opinion of the Full Bench might be ascertained on the difficult questions of law and the time of the Full Bench might not be occupied by other questions of fact or other questions of law of lesser importance.Santhanand Gir v. Basudevanand Gir : AIR1930All225 two questions of law were referred to a Full Bench of seven Judges, who delivered their opinions and answered the two questions. The case was then disposed of by the referring Judges. Again, in Udeypal Singh v. Lakshmi Chand : AIR1935All946 , the Full Bench expressed the opinion on the question of law, on which there was a conflict of opinion, leaving other matters to be decided by the Bench concerned. There appears to be a similar practice in Calcutta, Bombay and Madras. Recently this Court has added Rule 3-A in Ch. 1, which is as follows:

3-A. The Chief Justice may constitute a Pull Bench of three or more Judges either to decide a case or to decide any question or questions of law formulated by a Court hearing a case; and in the latter case the issues so decided shall be returned to the Court hearing the case and that Court shall follow the decision of the Pull Bench on the issues referred, and shall then decide the remaining issues if any, and dispose of the case.

2. In view of this new rule no objection can now be raised.

Sulaiman, C.J.

3. The following question has been referred to this Full Bench:

Whether a person who does not pay in his own right land revenue of Rs. 1,500 per annum but who is a member of a joint Hindu family paying land revenue amounting to more than Rs. 5,000 is eligible for election to the Court of Wards or the Agra Province Zamindars' Association under Section 4, United Provinces Court of Wards Aot read with Rule 5 of the Rules of the Agra Province Zamindars' Association and the United Provinces Electoral Rules?

4. The dispute is as regards the eligibility of respondent, Mr. Gajadhar Prasad, advocate. Admittedly he does not pay land revenue or under-proprietary rent amounting to Rs. 1,500 in respect of any property which is exclusively his own, nor is he in receipt of any maintenance allowance of at least Rs. 1,200 a year from the estate of a proprietor exclusively for his own use, but he is a member of a joint Hindu family which pays such revenue. It would be convenient first to consider the question as to the eligibility for election to the Agra Province Zamindars' Association. Rule 5(1) of the rules for 1927, which were then in force, lays down as a condition of eligibility for membership that persons should be

qualified under Schedule 2, Rule 11, United Provinces Electoral Rules, or such other rules as may for the time being be in force concerning electors for the Agra Landholders' constituency.

5. It is not claimed that the respondent is eligible under any other sub-rule.

6. The United Provinces Electoral Rules, which were in force at the time, are those for 1932. Under these Rules there are two classes of constituencies recognized, (a) General and (b) Special. Rule 8(2) specially provides that:

The qualifications of an elector for a Special constituency shall be the qualifications specified in Schedule 2 in the case of that constituency.

7. Schedule 1 contains the list of constituencies which are Non-Mohamedan, Mohamedan and European. Then follow the special constituencies including two of the Agra Landholders (North and South). Schedule 2 deals with the qualifications of the electors. Rules 1 to 5 are general in their character. Rules 6 to 9 deal with general constituencies. Rules 10 to 13 deal with special constituencies; in particular Rule 11 deals with the Agra Landholders' constituency specifically. Under Rule 2(1) where property is held jointly by the members of a joint family, the family is to be adopted as the unit for deciding whether under Schedule 2 the requisite qualification exists; and if it does exist, the person qualified shall be in the case of the Hindu joint family the manager thereof, or the member nominated in that behalf by a majority of the family. Sub-rule (3) makes it clear that a person may be qualified either (a) in his personal capacity or (b) in the capacity of a representative of a joint family, but not in both capacities. Besides Hindu joint families the rule applies to joint tenancies and to other joint families as well. This rule gives to a joint family the status of a unit which can take advantage of the combined income; at the same time it does not permit more than one manager or representative to have a vote. These rules contain the general provisions which would apply to general and special constituencies, unless of course there is any special provision restricting the applicability of the general rule as prescribed by Rule 8(2). Coming to the special constituencies, we find that under Rule 10 an ordinary member of the British Indian Association of Oudh is qualified as an elector for the Taluqdars' constituency. To such a person the provisions of Rule 2 would not be applicable. His qualification depends exclusively on his ordinary membership of the Association. We then come to Rule 11 referring to the Agra Landholders' constituency, which requires that the person should be the owner of land in the constituency. There is then a proviso added at the end of the rule in the following words:

Provided that, in determining the eligibility of a landholder as an elector, only land revenue payable or nominally assessed in respect of such land or share in land as he may hold in his own personal right and not in a fiduciary capacity shall be taken into account.

8. Learned Counsel for the respondent argued before us that this proviso is subject to the general rule contained in Schedule 2, Rule 2. But it is impossible to accept this contention as it is a well established principle that the general provisions have to give (sic) in face of a special provision. It is next argued that the words 'in his own personal right' are used merely as a contrast to 'not in a fiduciary capacity' and that both the expressions mean the same thing. If this argument were accepted, the last part of the proviso would read as 'in his non-fiduciary capacity and not in a fiduciary capacity'. The expression would be tautologous and there would be an unnecessary repetition of the same provision. When the two expressions are joined by the conjunction 'and' they cannot have identically the same meaning. Obviously there is not only one conditionl prescribed, but two conditions, both of which must be fulfilled. He must 'hold in his own personal right' and also 'not in a fiduciary capacity'. A distinction is drawn between 'right' and 'a capacity'. Obviously the two words connote different ideas and are not synonymous. Again, a double emphasis is laid on the kind of 'right' that is required. It was not thought enough to say 'in his right'; nor was it even thought enough to say 'in his personal right'; but the rule goes further and says 'in his own personal right'. There was no need for such a double emphasis if the expression was intended to mean nothing more than 'not in a fiduciary capacity'.

9. As pointed out, Schedule 2, Rule 2(3) drew a distinction between two capacities which a qualified person may possess : (a) his personal capacity and (b) in the capacity of a representative of a joint family. The two are different. Obviously the Government had the same distinction in mind when making Rule 11. 'In his own personal right' would be different from 'in the capacity of a representative of a joint family'. The definition of the word 'owner' in Schedule 2, Rule 1 had itself made it clear that an owner does not include a mortgagee, a trustee or a lessee. The reason that there should be such strictness may not be far to seek. The Agra Landholders' constituency is put on a par with the taluqdars' constituency. It is well known that taluqdars pay large amounts of revenue. It was therefore appropriate that for the Agra Landholders' constituency as well the payment of a large amount of revenue in one's own personal right should be a necessary condition and that the combined income of a large number of members of a joint family should not be considered to be sufficient. Government has advisedly used two different expressions in the proviso, and we must give to both such expressions distinct meanings which they ordinarily connote.

10. There is one further circumstance which strengthens this view. The general provision in Schedule 2, Rule 2 was applicable to both general and special constituencies. Special constituencies are four in number and yet it is significant that in none of the rules except Rule 11 there is a proviso like this. The very circumstance that such a proviso has been added to Rule 11 exclusively shows that it was intended to make it applicable to the Agra Landholders' constituency specially, and to that extent overrides the general provisions contained in Schedule 2, Rule 2. I would therefore hold that a person who does not pay in his own personal right land revenue amounting to Rs. 1,500 or more per annum but is merely a representative of a joint Hindu family paying such land revenue, is not qualified as elector for the Agra Landholders' constituency, within the meaning of Rule 11, and is therefore not eligible for membership of the Agra Zamindars' Association under Rule 5(1).

11. The answer to the next question referred to us must depend solely on the interpretation of Section 4, United Provinces Court of Wards Act as amended by Act 5 of 1933. Under this section provision is made for the constitution of the Court of Wards for the entire United Provinces consisting of a President and nine members. Section 6 of the Act, shows that very responsible duties are imposed upon the Court of Wards and important powers are conferred upon it. It is reasonable to expect that for such a small Court of Wards, constituted for the entire province and consisting of a few members only, the qualifications required for membership should be high. Section 4 (l), Clauses (b) and (c) refer to members elected by the British Indian Association and by the Agra Zamindars' Association, while (d) refers to members of the United Provinces Legislative Council elected by the Council. The contrast in the phraseology used in Clauses (b) and (c) on the one hand and (d) on the other shows clearly that the members elected by the United Provinces Council must be members of the Legislative Council, whereas the members elected by the British Indian Association of the Agra Zamindars' Association need not be members of such Associations. Rule 4(1) contains the first proviso in the following terms:

Provided that no person except the President shall be elected as a member who does not pay land revenue or under proprietary rent amounting to Rs. 1,500 or who is not in receipt of a maintenance allowance of Rs. 1,200 from the estate of a proprietor.

12. The qualification that an elected or nominated member must be in receipt of a maintenance allowance of at least Rs. 1,200 a year must necessarily mean the allowance to which he is entitled personally, and not to the entire amount which may be allowed to him and the other members of his family jointly. The very essence of a maintenance allowance is to provide support for such person and the fixing of this amount is obviously intended to prescribe a minimum standard of status for him. It is impossible to hold that the manager of a joint Hindu family and, for the matter of that, every junior member of such family, would be eligible merely because the entire family taken together is in receipt of a maintenance allowance of Rs. 1,200 a year, although the rateable share of each member may be a very small amount.

13. The conditions of payment of land revenue or under proprietary rent amounting to Rs. 1,500 and. that of being in receipt of a maintenance allowance of at least Rs. 1,200 a year are alternative and it would seem that they should be co-extensive. So far as the personal qualification of the member is concerned, both of these conditions have to be understood in the same sense. It follows that an elected or nominated member to be eligible must himself be paying and revenue or under-proprietary rent amounting to Rs. 1,500 and that for the purposes of this proviso he cannot take into account the entire land revenue or under-proprietary rent which all the members of his family living jointly with him are paying. So far as this Act is concerned, it applies equally to zamindars of all denominations who are residents of these provinces. No special provision is anywhere made in favour of joint Hindu families so as to entitle every single member of it to make himself eligible on the mere ground that the family taken as a whole fulfils the required conditions. It has been urged in argument that to open up such an inquiry regarding members of a joint family would be highly inconvenient. But ordinarily zamindars paying large revenues or under-proprietary rents would be elected or nominated as members and the cases where the qualification is really doubtful may be quite rare. In any case, that is no adequate ground for putting a strained interpretation on this proviso when it is worded in a general way so as to be applicable to persons of all denominations alike. I would therefore answer this part of the question also in the negative.

Thom, J.

14. I concur.

Rachhpal Singh, J.

15. I agree.


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