Taxation Law - Income Tax – Residence of Hindu Undivided Family – Section 4A(b) of the Income Tax Act – Assessee Held Resident – The appellant, karta of a Hindu Undivided Family domiciled in Ceylon, claimed that the control and management of the family affairs was wholly outside British India – Despite permanent residence in Ceylon, the appellant frequently visited British India, attended to litigation and income tax proceedings, and initiated new partnerships in India – Held: The onus to prove that control and management was wholly outside British India was on the assessee and not discharged – The family must be deemed to be resident in British India for the relevant year [Paras 1–5, 10–13].

Meaning of Control and Management – “Head and Brain” of Affairs – Test of Residence – The Court adopted English common law principles to interpret “control and management” – Held: The expression refers to the real directing power, which must function with some degree of permanence – Mere physical presence or temporary activity in British India is not sufficient to constitute residence, but acts indicating control of affairs are relevant to determine situs of management [Paras 6–9, 11–12].

Onus of Proof – Failure to Discharge Burden – Assessment Upheld – The burden to establish that control and management was situated wholly outside British India rested on the assessee – No correspondence or documentary evidence was produced to show that instructions regarding Indian affairs were issued from Colombo – In absence of proof to the contrary, the presumption of residence in India stood [Para 13].

Limited Scope – Decision Restricted to Assessment Year 1942-43 – The Court clarified that the finding was based on failure of evidence in respect of a particular assessment year and that the appellant was free to adduce proper evidence in future assessments to establish residence outside British India [Para 13].

Appeal – Dismissed – Assessee Failed to Displace Statutory Presumption – Supreme Court affirmed the High Court’s view that the Appellate Tribunal erred in holding the HUF as non-resident – The appeal was dismissed with costs [Paras 14–16].

Civil Writ - Challenge Constitution to the validity of the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 - Maintainability – Locus Standi – Article 32 – Company vs Shareholder Rights – Petition Not Maintainable Where Shareholder Challenges Law Affecting Company Alone – An individual shareholder cannot invoke Article 32 to challenge legislation that allegedly violates the rights of the company unless he establishes direct infringement of his own fundamental rights – Held: Company and shareholder are separate legal entities – Petitioner's ownership of one share does not entitle him to challenge deprivation of the company’s property [Paras 44-47, 84-86].

Right to Property – Articles 31(1) and 31(2) – No Deprivation or Acquisition – The Sholapur Act did not result in “acquisition” or “taking possession” of the shareholder’s property under Article 31(2) – Shareholders retained full ownership of shares and right to dividends – Restrictions on voting rights and winding up proceedings did not amount to deprivation of property – Held: No compensation required as there was no acquisition or taking over under Article 31(2) [Paras 54-58, 76-82].

Right to Hold Property – Article 19(1)(f) and Reasonable Restrictions – Restrictions on voting, winding up proceedings do not violate Article 19(1)(f) – Held: Such restrictions, even if they amount to limitation on enjoyment of property, are reasonable in public interest and valid under Article 19(5) – No violation of the shareholder's fundamental rights [Paras 59-62].

Equal Protection – Article 14 – Valid Classification – Sholapur Act Not Discriminatory – Selection of single company valid if based on intelligible differentia – Onus lies on petitioner to prove arbitrary selection – Held: Mismanagement and impact on essential commodity production justified legislative intervention – Absence of proof of similarly situated companies not being subject to such legislation – No violation of Article 14 [Paras 8-21, 63-67].

Legislative Competence – Entry 43, Union List – Regulation of Companies – Act Valid – The Sholapur Act falls within the legislative competence of the Union under Entry 43, List I (Union List) – The legislation was concerned with regulation of a trading corporation and thus intra vires – Held: Argument of lack of competence rejected [Paras 68-69, 75].

Decision – Petition Dismissed – Majority of the bench held that the petitioner failed to establish violation of fundamental rights – No interference warranted under Article 32 – However, minority view (Justice Das and Justice Sastri) dissented holding that Article 14 was violated – Held: No dispossession under Article 31, and classification under Article 14 was valid – Petition dismissed with costs [Paras 4, 22, 35, 69, 93-94].

Note: This Judgment has been overruled by : Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 : (1958) 1 LLJ 544 : (1958) 1 SCR 828

Specific Performance – Consent of Lessor – Whether Agreement Contingent – Agreement Not Contingent – Parties concluded a binding contract by correspondence; obligation to obtain lessor’s consent was a substantive term cast on defendant, not a condition precedent to formation of contract – Specific performance rightly decreed notwithstanding absence of prior consent [Paras 4–8, 15].

Leasehold Assignment – Covenant “Consent not to be unreasonably withheld” – Effect – Such words qualify lessee’s covenant against assignment and relieve it where consent is unreasonably withheld for a respectable/responsible assignee – Plaintiff proved respectability/responsibility; lessor’s refusal without reason held unreasonable – Defendant could validly assign without consent; decree sustained [Paras 9, 11, 14–15].

Pleadings – Raising Point of Unreasonable Withholding – No Surprise – Plaintiff’s stance foreshadowed in plaint averring respectability/responsibility; defendant’s own admissions and evidence considered – Court competent to determine reasonableness inter se parties though not binding on lessor (who was not a party) [Paras 10–11].

Appellate Procedure – Additional Evidence – Order 41 Rule 27 CPC – Permissible Where Appellate Court Requires It – High Court rightly directed examination of Maharaja (lessor) “to clear up the matter”; exercise falls squarely within O.41 R.27 discretion – No interference warranted [Para 12].

Contract Construction – Consent Term for Purchaser’s Benefit – Waiver – The stipulation that defendant obtain written consent before completion was introduced by purchaser and operated for purchaser’s protection – Purchaser could waive and insist on performance; defendant could not rely on absence of consent to avoid contract – Any title defect accepted by purchaser [Para 13].

Risk of Lessor’s Action – Not a Bar to Specific Performance – Possible damages/forfeiture concerns do not defeat decree where defendant failed to condition his obligation on obtaining consent and assignee is respectable/responsible; damages against assignor speculative – Specific performance appropriately ordered [Para 14].

Decision – Appeal dismissed – Decree for specific performance (with provision to proceed without prior lessor consent) affirmed; costs to respondent [Para 15].

Family Law - Hindu Succession – Proof of Daughtership – Oral vs Documentary Evidence – Finding of Natural Daughtership Upheld – Plaintiffs (alleged reversioners) disputed that Binodini was the natural daughter of Govind Ballab; Trial Court leaned on loose “account sheets” and almanac entries to negate daughtership; High Court preferred credible oral evidence (including D.W.3, an eyewitness at birth) and rejected the papers – Held: Oral evidence of birth trustworthy; plaintiffs’ documents lacked probative value; Binodini treated as and was the natural daughter – Appeal dismissed [Paras 1–4, 6].

Accounts & Almanacs – Evidence Act Sect. 34 & Sect. 90 – Loose Sheets Not “Books of Account Regularly Kept”; §90 Presumption Inapplicable – Exhibit 32 series comprised loose sheets produced from Receiver’s custody; not a regularly kept book; genuineness/date not proved (torn numeral; fresh ink) – Presumption under §90 (as to signatures/handwriting of documents 30+ years old) not attracted; almanac loose leaves with blanks lacked reliability and were susceptible to substitution – No compelling evidentiary weight to displace oral proof [Paras 3–4].

Hearsay Exceptions – Evidence Act §32 – Not Engaged – Entries relied on were not shown to fall within Sect. 32 clauses; absent proof of authorship and regular course, the sheets could not be received under Sect. 32 to prove dates of births; hence rejection sustained [Paras 3–4].

CPC Sect.149 – Deficient Court-Fee on Appeal – Amendment and Make-Up of Court-Fee Permissible; Limitation Plea Does Not Defeat Discretion – High Court rightly allowed amendment deleting expansive relief and permitted payment of requisite ad valorem court-fee; decree under appeal being declaratory, fee issue was primarily between State and appellants; exercise of §149 discretion could ignore limitation objections; no injustice caused [Para 5].

Decision – Appeal dismissed with costs – High Court decree (dismissing plaintiffs’ suit) affirmed; preliminary objection on court-fee fails [Paras 5–6].

Registration – Compromise Decree – Lease / Agreement to Lease – Section 17(1)(d) & 17(2)(vi) – Decree Not Requiring Registration – Suit compromised in 1923 adjusting prior pattas: royalty to Singhs reduced and minimum lowered – Deoshis to pay enhanced royalty to Singhs and hold 500 bighas under them – Entire arrangement conditional on Singhs paying Rs. 8,000 to Kumar within two months – Held: Compromise did not operate as a present demise but created, at most, a contingent under-lease dependent on payment – A contingent agreement is outside §17(1)(d); though within §17(1)(b) it is exempt under §17(2)(vi) (as it then stood) – Decree admissible and suit decreed; appeal dismissed with costs [Paras 3–8].

Scope of §17(2)(vi) (pre-1930) – Compromise covering property beyond suit subject – Protected – Prior to the 1929/1930 amendment, the exception extended to compromise decrees even if they comprised immovable property beyond the suit land – Hence no registration needed merely because the compromise also touched the remaining 5,300 bighas [Paras 5, 7].

Nature of Transaction – Not mere rent variation nor assignment of reversion – Legal Effect – The compromise did more than alter royalty; it brought Singhs and Deoshis into a new legal relationship of lessor–under-lessee for 500 bighas – However, as execution/possession were expressly barred unless Rs. 8,000 was paid within time, there was no present and immediate interest created – Therefore not a “lease” or “agreement to lease” within §17(1)(d) [Paras 4, 6–7].

Decision – Appeal dismissed with costs – High Court’s decree affirmed on different reasoning – Compromise decree did not require registration and was rightly acted upon [Para 7–8].

Execution Limitation – Fraud and twin regimes – CPC Sect. 48(2) vs Limitation Act Sect. 18 – Decree-holder proved judgment-debtor’s fraudulent concealment of ownership of “Prabhat” newspaper – Held: Fraud attracted CPC Sect.48(2) giving a fresh 12-year window for execution from the fraud period – However, Limitation Act bar under Art. 182 still applies unless Sect.18 is satisfied – Fraud preventing execution is distinct from fraud keeping the decree-holder from knowledge of the right to apply – On facts Sect.18 not attracted – Application beyond 3 years from prior dismissal is time-barred under Art. 182 [Paras 7–9, 11–19, 22–24].

Conditional Decree – Court-fee stipulation – Not a condition postponing enforceability – Final decree directing plaintiff to pay deficit court-fee before execution is executable from date of decree – Payment within decree-holder’s control – No deferred start for limitation [Para 5].

Section 14(2) Limitation Act – Insolvency proceedings – No exclusion – Insolvency petition to adjudicate debtor is a different proceeding seeking different relief from execution – Time not deductible under Sect.14(2) [Para 5].

Third-Party Creditor’s Steps – No saving of limitation – Attachment/execution attempts by decree-holder’s creditor (Tendulkar) do not keep alive the decree for the decree-holder – Subsequent application beyond 3 years from 09-09-1940 is barred under Art. 182 [Para 6].

Indivisibility of Right to Apply – Property-specific concealment insufficient for Sect.18 – Right to apply for execution is single and indivisible – Concealment of one asset does not postpone limitation for the whole decree under Sect.18 – Decree-holder knew of right to apply and of other assets – Failure to proceed within triennium is fatal under Art. 182 [Paras 18–21].

Harmonious Construction – CPC Sect.48 and Limitation Act – Sect.48 imposes outer cap of 12 years (extendable for fraud/force under Sect.48(2)) – Limitation Act (Art. 182) requires triennial steps; only Sect.18 can shift the starting point for applications – Equity cannot override the statutory scheme [Paras 22–25].

Decision – Appeal dismissed – Fraud under Sect.48(2) proved, but no saving under Sect.18; current execution barred by Art. 182 – Costs to respondent [Paras 15–16, 22–26].

Civil Law - Specific Performance – Assignment of Lease – Consent of Lessor – Decree for Specific Performance Upheld – The agreement between the defendant and the plaintiff for assignment of leasehold rights included a clause requiring lessor’s consent, but the clause did not make the agreement itself contingent on such consent – Held: The defendant was contractually obligated to obtain consent, and failure to do so could not relieve him of performance – Specific performance rightly decreed [Paras 4-9].

Contract Law – Offer and Acceptance – Formation of Contract Not Conditional on Consent – Analysis of correspondence showed that the obligation to obtain lessor’s consent was a term of performance, not a condition precedent to formation – Held: A concluded agreement existed between the parties, binding on the defendant irrespective of whether consent was ultimately obtained [Paras 6-8].

Lease Covenant – Consent Not to Be Unreasonably Withheld – Defendant Could Assign Without Consent – Lease provided that lessor’s consent shall not be unreasonably withheld for respectable or responsible persons – Plaintiff was found to be respectable and responsible – Held: Lessor’s refusal was unreasonable, relieving the lessee from the restriction – Assignment without consent permissible [Paras 9, 14].

Order 41 Rule 27 CPC – Admission of Additional Evidence at Appellate Stage – Justified – The appellate Court recorded evidence of the Maharaja (lessor) to determine reasonableness of consent refusal – Held: The evidence was properly admitted under Order 41 Rule 27 as necessary to reach a just conclusion – No misuse of discretion [Para 12].

Risk of Breach of Covenant – Not a Defence Against Specific Performance – Defendant argued that performing the contract without lessor’s consent exposed him to liability – Held: Such risk was speculative, especially since the plaintiff accepted the title with the defect – Defendant had failed to make consent a condition precedent and was bound to perform [Paras 13-14].

Judgment – Appeal Dismissed – Supreme Court upheld the decree for specific performance granted by the trial and appellate courts – Lessor’s consent not a bar to enforcement of contract – No interference warranted – Appellant directed to pay costs [Para 15].

Civil Law - Registration Act – Compromise Decree – Requirement of Registration – No Registration Required – A compromise decree modifying terms of earlier pattas and creating a new relationship of under-tenancy between the parties was challenged as inadmissible for want of registration – Held: Though the decree purported to alter lease terms and create new obligations, it was conditional on payment and did not operate as a present demise – Not a lease within meaning of Section 17(1)(d) – Covered under Section 17(1)(b) but exempt from registration under Section 17(2)(vi) as it was a court decree – No registration required [Paras 4–7].

Lease Law – Conditional Compromise Creating Under-Tenancy – Not a Present Lease – The compromise created a new relationship between prior lessees (Deoshis) and the Singh plaintiffs, making the former under-lessees of the latter upon fulfilment of a payment condition – Held: Such conditional agreement did not create a present and immediate interest in immovable property and thus did not fall within the scope of a “lease” or “agreement to lease” under Section 17(1)(d) – Document excluded from registration requirement [Paras 6–7].

Interpretation – Judicial Precedent – Hemanta Kumari Decision Followed – Reliance placed on Privy Council’s decision in Hemanta Kumari Debi v. Midnapur Zamindari Co. – Held: Even if the compromise covered property beyond the original suit’s subject matter, it was exempt from registration as it constituted a decree of court – Amendment to Registration Act in 1930 did not apply retrospectively to the 1923 decree [Paras 5–6].

Decision – Appeal Dismissed – Supreme Court upheld the High Court's decree enforcing the terms of the unregistered compromise – Registration not mandatory – No error found – Appeal dismissed with costs [Paras 7–8].

Civil Law - Execution Proceedings – Fraud under Section 48(2) CPC – Limitation Extended – Judgment-debtor fraudulently concealed his ownership of the ‘Prabhat’ newspaper to avoid execution of decree – Both Trial Court and High Court found fraud proven – Supreme Court held that the concealment amounted to fraud preventing execution under Section 48(2) CPC – Decree-holder entitled to fresh limitation of 12 years from date of fraud discovery – Execution not barred under CPC [Paras 7-10, 15].

Section 18 of Limitation Act – Fraud Not Preventing Knowledge of Right – No Relief – Though fraud was established, it did not prevent decree-holder from knowing his right to apply for execution – Suppression of ownership of one property did not amount to concealment of decree-holder’s general right – Held: Section 18 not attracted – Limitation under Article 182 applies from last execution dismissal [Paras 18-21].

Execution Barred under Article 182 – Fraud Not Recognized as Fresh Starting Point – Execution application filed more than 3 years after dismissal of prior darkhast in 1940 – Supreme Court held that Section 48 CPC and Article 182 of Limitation Act operate independently – Fraud extends limitation under CPC but not under Article 182 unless Section 18 conditions are met – Hence, application barred [Paras 22-24].

Indivisible Right to Execute – No Segregation Based on Property – Right to execute a decree is single and indivisible – Fraud affecting one property does not create multiple limitation periods – Fraud must affect entire right to apply for execution to attract Section 18 – Splitting limitation for parts of decree execution rejected [Para 18].

Equitable Principles and Fraud – No Override of Statutory Limitation – Though courts guard against fraud, equity cannot override clear statutory provisions – Relief for fraud is strictly governed by Section 18 of the Limitation Act – Fraud under CPC does not alter application of limitation under Limitation Act unless statutory conditions met [Para 25].

Decision – Execution Application Barred – Appeal Dismissed – Supreme Court concurred with Bombay High Court that execution petition was barred under Article 182 of the Limitation Act – Despite fraud being proven under CPC, it did not satisfy Section 18 of the Limitation Act – Appeal dismissed with costs [Paras 26-27].