SCINDIA STEAM NAVIGATION CO. LTD. v. UNION OF INDIA
Citation: [1962] 3 S.C.R. 412; 1961 INSC 255
Court: Supreme Court of India
Bench: P.B. GAJENDRAGADKAR , K. SUBBA RAO, M. HIDAYATULLAH
Judgment date:
Case summary
1961 INSC 255. Supreme Court of India judgment dated 1961-08-31. SCINDIA STEAM NAVIGATION CO. LTD. v. UNION OF INDIA. Read the judgment and case details on...
Judgment text
SUPREME COURT REPORTS [1952] 412 . SUPREl. lE . COURT REPORTS {1962] SCINDIA STEAM NAVIGATION CO. LTD. v. UNION OF JNDIA (P. B. GAJENDRAGADKAR, K. Sulll! A RAo and llf. H! DA¥A. 'l'ULLAil ' JJ. ) Partition of irufia-Diatrib1tion of rig/it and lialrili1i. -- Contr11ct ~ Go~·er"°r General in Council, if JOI' pv. rposPa of t' Paki&Jan-Te8! -0wnership, if a relerant con•iderat;on-Indian Independenu (Right•, l'roJl'rt. v and I. iabilitiea) Or~er 1947, . Art.. 8(1), 6. The appellant, a navigation company, claimed a sum of Rs. 44,449/· as freight from the Union of India for carrying IOgs of teak-wood from the fore. ts of Kanara to Karachi for the use of ! he North Western Railway on the ba>is of a contract "'ith the Conservator of Forests, North Kanara, representing the North Western Railway. Soon after tjle steamship arri""d at Karachi, India was partitioned on Au1:ust 15, JM7, and in' canstquen. ce the North Western Railway was di\'idcd into two sections, the Pakistan .
section ret•incd the original name and t11e Indian section \\'a~ ca11ed the Eas~ern Punjab Railway. The claim against the respondent, the :Union af India, was based on Art. 8( 1) of the Indian I ndepecdcnee (Rights, Property and Liabi! itie. ) Order, 1947, and in ·the alternative on a Press Communique issued by the respondent on ~fay 22, 1948. The re. was exclusively for the purposes of Pakistan. The alternative tests approved by this court are wholly consistent with the consideration of ownership under Art. 6 of the order and such consideration is both relevant and material in the application of tests. Union of India v. Chaman Lal Laona, (1957) S. C. R. 1039, followed. -.. Union of India v. Chinubhai Jeshingbhai, (1952) 54 B. L. R. 561 and Krishna Rajan Basu Ray v. /, nion of India, A. LR. 1954 Cal. 623, approved. Union of India v. Lake Nath Saha; A. LR. -1952 Cal. l 40A. , disapproved.
Held, further, that the courts below were right in the view that they took of the Communique issued by the respondent, since it could not be said to embody a specific ~ agreement between the two Dominions so as. to bring into operation Art. 3( 1) of the Order. The pleas of e8foppel ar. d noratio, involving as they do questions of fact, ar. d can only be raised where rdevant facts are pleaded. Per Subba Rao, J. The word 'purposes' occurring in Art. 8( I) of the order must be given its natural meaning namely, the purpose for which the contract was made and -" that purpose must be ascertoined from the terms of the con· tract itself and not from any other extraneous consideratio~, statutory or otherwise. The Order made an essential distinction between the purpose of the contract under Art. 8( I) and any subsequent vesting of the goods ;n any of the Dominions under Art. 6 of the Order and the rights and liabilities of the respective Dominions und. er th.
e contract must be separately dealt with. J Since the purpose of the contract in the instant case was to convey the goods to the North Western Railway which was now in both the Dominions, the purposes of the contract were not exclusively for the Dominion o~ l'akistan. Consequently, the contract feil within Art. 8(l}(b) of the Order and must be deemed to have been made on behalf of the Dominion of India. Unia" of India v. Chama1t IAl Laona, (1957) S. C,R.. ~ 1939, referred to. Union of India v. Ohinubhai Jeshingbhai, I. L. R. 1953 Born. 117, considered. -1 ~ .. : - • ·- -~ • CIVIL APPELLATE JURISDICTIOX : Civil Appeal N'o. JO of 1959. " Appeal from the judgment and decree dated March 22, 1956 of the Bombay High Court in Appeal No. to of 1955. l'urshottam Triknmaa. •, S. i. ·. Andley, J. B. Dadachanji, Rarinder Narain and 0. C. Mathur, for the appellants. M. C. Selafrad, Attorney-General for India, Xanak Cha1Hl and T. M. Sm for the respondent. 1961. August 31.
The Judgments of the r Court were delivered. P. B. GAJENDIU. GADKAH, ,T. -This appeal by a certificate issued by the Bomlmy High C'mrt 1111der Art. 133 (l)(a) of the Curn;titution ,\risPs out of a suit initially filed on the Original Side of tho Bombay High Court (Suit No. 232 of 1951) by the • Bombay Steam :Navigation Co. Ltd. (hereafter called the B. S. ~. ), and the Eastern Steam Xavigation Co. Ltd. (hereafter called the :E. S. N. ), against the respondent. , the Union of India to recover a sum of Rs. (>4,699-6·0 by way of charges for carriage oflogs oftl'akwood timber from the forests ofKan:. ra to Karachi. A further sum of Rs. 445·4-0 was also claimed for storage charges of the said logs at Marmagoa. This latter claim was given up at " the time of the heari11g of the suit. The B. S. N. then merged in the Scindia Steam ~avigation Co. Ltd. , and so the latter company came on the record in place of the B. S. N. This company is the first appellant before us. The E. S. N.
was in liquidation and so its liquidators hiwc joined thl' present . litigation as plaintiff 2 and so they arc appellant 2 • in this Court. The E. S. N. had a ship called Aza. di. It appears that tho B. S. N. looked after the business of tho E. S. N. and arranged on its behalf freight to he carried by the ship belonging to it. In } 04 7 thero was an agreement between thl' B. S. N. as rcprcsc11ting the E. S. N. on the one hand and the .. Comervator of Forests, North Kanara, representing the North-Western Railway on the other for the carriage of logs of teakwood timber from the forests in Kanara, first by rail . to Marmagoa and then by a steamer belonging to the E. S. N. from l\farmagoa to Karachi. Pursuant to this agreement 636 tons of timber were shipped by the Steamer Azadi which left Marmagoa on July 23, 1947.
It is commcn ground that the conditions of the bill of lading provided that the appellants had the right to have the logs of wood remeasured at Karachi but it was agreed between the railway and appellants that freight should be paid on the basis of 70% more than the measurements shown by the records of the forest department of South Kanara. In the plaint as it was originally filed freight had been claimed on the said basis ; but it appears that before the learned trial judge this claim was given up and in consequence the . amount claimed was reduced from Rs. 64,699-6-0 to Rs. 44,449/-. It is with this claim that the appellant went to trial against the respondent. Soon after the Azadi reached Karachi the partition of India into the two Dominions of India.
and Pakistan took place on August 15, 1947, and that led to a good deal of correspondence between the parties which shows that the appellants were sent from pillar to post, from one authority to the other, but utimately their efforts to recover the amount due under the contract failed. That is why the appellants had to file the present suit against the respondent. Their claim agall;tst' the . respondent is based on Art. 8 ( l)(b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, (hereafter called the Order). In the alternative the same amount is claimed on the footing of a. Press Communique alleged to have been issued by the respondent on May 22, 1948. The respondent denied this claim. It 'was urged that the suit as framed was not maintainable and t. hat the plaint did not . The appellants' contention that the relevant, clause of the Orcler justified the claim was also den iccl.
On these ple&dingH eleven substantive issues were framed by the learned trial judge. On t~ princip&l issue between the parties which related to the applicability of Art. 8 (I) (b) of t. hc Order to tho appellants' claim the learned ju y the said High Court in Union of India v. Loke Nath Saha (')was dissented from. I ' We will now revert to the decision of this Court in Ohaman·Lal Loona's case('). S. K. Das, J. , (I} A. LR. 195i Cal. f,23: (2) A. LR. 1952 Col. 140 {A). t3) [[957] S. C. R. 1039. ', .. , who spoke for tho Court, posed the question raised for the decision of the Court in these words : "what is the proper meaning of the expression 'a contract fur the exclusiv nd that,. the respondent was estopped from disputing its liability under the contract, and he also wanted to urge the ground of no\·atio. His contention was that the facts necessary for the purpose of pleading estoppcl an AYATUI. LAH, J. T. ) R of different bra,. che" can acquir.
prop•rly a1joinl llindufamily property. One I. \V&S living voith his sons K and J in the village. lie was not in affluent circurnstances. K left the ancestral home; he first joined military service and then police srrvice. He gave up service and started a business with his savings. He brought his nephews R (husband of the respondent) and B (appellant) at different limes and allowed • them to take part in the bminess. At his death K left a will bequeathing all his prope11ies to his two nephews. After the death of R, his widow, the respondent, filed a suit againc;c B, the appellant in a Revenue Court under the U. P. Tenancv Act, for a half share of the inco:ne of •ome of the villages left by K. As a dispute aro<e as to proprietary title the Revenue Court framed an issue there on and referred it to the Civil Court a< required by the Act. The Civil Court held that the respondenr had a half share in the vilhl. ges and on the bac;is of this finding the Revenue Court decreed the suit.
Thoreafter, l~e ap~ellant filed the present suit in a Civil Court for a declaration that he was the absolute owner of all the properties io suit. His case wru that L, his sons and descen<lanrs constituted a joint f{iudu family, that there \\'a'i never any partition in the family, that K, R and B jointly started a business and thev joinrly acquired . some properties during the lire time of K, some after the death of Kand some after the death of R, that the said properties were joint family properties and chat he as the survivor was the absolute owner of all the propertie;. Alternatively,
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