S. Khader Sheriff v. Munnuswami Gounder and Others.
VENKATARAMA AYYAR J.-This is an appeal by
~pecial leave against the order of the Election Tribu
nal, Vellore, declaring - the election of appellant
to the Legislative Assembly void on the ground that
there had been a violation of section 123(7) of the
Representation of the People Act No. XLIII of 1951.
Under that section, it is a major corrupt practice for
a candidate or his agent to incur or authorise the in
curring of expenditure in contravention of the Act
or any rule made thereunder. Rule 117 provides that:
"No expense shall be incurred or authorised by a
2 S.C.R. SUPREME COURT REPORTS 471
candidate or his election agent on account of or in
respect of the conduct and management of an election
in any one constituency in a State in excess of the
maximum amount specified in respect of that Consti
tuency in Schedule V."
Under Schedule V, the maximum expenses specified
for election to the Madras State Legisfature from a
single-member constituency, such as Ranipct, is Rs.
8,000. The return of the expenses lodged by the ap
pellant showed that he had spent in all Rs. 7,fXl3 for
the election, and that was within the limit allowed.
The charge against him in the petition was that he
had failed to disclose in his return two sums of Rs.
500 each, spent for election purposes, and that with
the aadition of those amounts, the maximum speci
fied had been exceeded. As regards the first amount,
the facts found are that on 12-9-1951 the appellant
applied to the Tamil Nad Congress Committee for per
mission to contest the election as a Congress candi
date, and along with his application he paid Rs. 500
out of which Rs. 100 was subscription for member
ship and Rs. 400 deposit, which was liable to be re
turned under the rules, in case the applicant was not
adopted. as the candidate, but not otherwise. In fact.
the appellant was adopted as the Congress candidate,
and it was on that ticket that he fought and won the
election. The second payment of Rs. 500 was on
23-9-1951 to the North Arcot District Congress Com
mittee, which was in charge of the Ranipet Consti
tuency. The Tribunal held that both these sums
were paid for purposes of election and should have
been included in the return made by the appellant,
that if they were so included, the maximum prescribed
was exceeded, and that therefore section 123(7) had
been contravened, and accorqingly declared the elec
tion void under section 100(2) (b) of the Act. The
appellant disputes the correctness of this order. The
Tribunal also recorded as part of the order a finding
that the appellant had become subject to the dis
qualifications specified in section 140, sub-clauses
( 1) (a) and (2). The appellant attacks this finding on
1955
S. Eluzthr S'"'i/f
,,.
M-111ami
G-4n and olltm
Ynikalarama
.d.uar J.
1955
S. K/ilukr S""if!
v.
Munnunoami
G=uler and othm
the ground that it was given without notice to him,
as required by the proviso to section 99.
The points that arise for decision in this appeal arc
( 1) whether on the facts found, there was a contra
vention of section 123(7) of Act No. XLIII of 1951 ;
and (2) whether the finding that the appellant had
become disqualified under section 140 is bad for want
of notice under the proviso to section 99 of the Act.
( 1) Taking first the sum of Rs. 500 paid by the ap
pellant to the Tamil Nad Congress Committee on
12-9-1951, the contention of the appellant is that sec
tion 123(7) and Rule 117 have reference only to ex
penses incurred by a candidate or his agent, that the
appellant was nominated as a candidate only on
16-11-1951, and that as the payment in question was
made long prior to the filing of the nomination paper,
the provisions aforesaid had no application. That
raises the question as to when the appellant became
a 'candidate' for purposes of section 123(7). Section
79(b) of Act No. XLIII of 1951 defines a candidate
thus:
"Candidate" means a person who has been or
claims to have been duly nominated as a candidate at
any election, and any such person shall be deemed to
have been a candidate as from the time when, with the
election in prospect, he bagan to hold himself out as
a prospective candidate".
Under this definition which applies to section 123(7),
all election expenses incurred by a candidate from
the time when, with the election in prospect, he holds
himself out as a prospective candidate and not mere
ly from the date when he is nominated, will have to
enter into the reckoning under Rule 117 read with
Schedule V. That the election was in prospect when
the amount of Rs. 500 was paid is clear from the
very application of the appellant dated 12-9-1951
wherein he states that he desires "to contest as a
Congress candidate in the forthcoming election".
That is not disputed by the appellant. What he con
tends is that though the election was in prospect, he
had not become a prospective candidate at that time,
and that he became so only when the Congress
2 S.C.R. SUPREME COURT REPORTS 473
adopted him as its candidate on 13-11-1951. It was
argued that it was open to the Congress Committee
either to adopt him as its candidate or not, that if it
did not adopt him, he could not, under the rules to
which he had subscribed, stand for election at
all, that until he was actually adopted therefor, his
candidature was nebulaus and uncertain, and that
the application w:is consequently nothing more than
a preliminary step-in-aid of his becoming a prospec
tive candidate.
The question when a person becomes a candidate
must be decided on the language of section 79(b ).
Under that section, the candidature commences when
the pe1son begins to hold himself out as a prospective
candidate. The determining factor therefore is the
decision of the candidate himself, no the act of other
persons or bodie~ adopting him as their candidate.
In The Lich field case(1) at page 36, Baron Pollock
observed:
"I think the proper mode of judging a question of
this kind is to take it from the point of view of the
candidate himself. Every man must judge when he
wi!l throw himself into the arena .... But it is his own
choice when he throws down the glove and commences
his candidature".
When, therefore, a question arises under section
79(b) whether a person had become a candidate at a
given point of time, what has to be seen is whe
ther at that time, he had clearly and unambiguously
deciared his intention to stand as a candidate, so that'
it could be said of him that he held himself out as
a prospective candidate. That he has merely
formed an intention to stand for election is not
sufficient to make him a prospective candidate, be
cause it is of the essence of the matter that · he should
hold himself out as a prospective candidate. That
can only be if he communicates that intention to the
outside world by declaration or conduct from which
it could be inferred that he intends to stand as a
candidate. Has that been established in this case ?
When the appellant made the payment of Rs. 500 to
11)5 0.' M. & H. l.
12-83 S. C. India/59
1955
s. Khaur Shniff
v.
Munnuswa•i
Goundtr and olhws.
V tnktttarama
Ayyar J.
1955
S. lfluldw SMtjf/
v.
MG-mr atul .,,,,,,
the Tamil Nad Congress Committee, did he merely
evince an intention to stand as a candidate, or did he
hold himself out as a prospective candidate? The
application contains a clear declaration of his inten
tion to contest the election, and that declaration is
backed by the solemn act of payment of Rs. 500. The
appellant had thus clearly and unambiguously con
veyed to the Committee his intention to stand as a
candidate, and he thereby became a prospective candi
date within the meaning of section 79(b). The possi
bility that the Congress might not adopt him as its
candidate does not, as already mentioned, affect the
position, as the section has regard only to the volition
and conduct of the candidate. It is true that if the
Congress did not adopt him, the appellant might not
b,e able to stand for election. But such a result is
implicit in the very notion of a prospective candidate,
and does not militate against his becoming one from
the date of his application.
It was also urged for the appellant that the decla
ration was made nor to the constituency in the North
Arcot District but to the Central Committee at Madras,
and that unless there was proof of holding out to the
electorate, the requirements of section 79 (b) were
not satisfied. It may be that the holding out which
is conte;nplated by that section is to the Constit
uency; but if it is the Central Committee that has to
decide who shall be adopted for election from the
concerned constituency, any declaration made to the
Committee is, in effect, addressed to the constituency
through its accredited representative. The ques
tion when a candidature commences is, as has,
been held over and over again, one of fact, and a
decision of the Tribunal on that question is not liable
to be reviewed by this Court in special appeal. In the
present case, the Tribunal has, in a well-considered
judgment, formulated the correct principles to be ap
plied in determining when a candidature commences,
examined the evidence in the light of those principles,
and recorded a finding that the appellant was a pros
pective candidate when he made the payment of
2 S.C.R. SUPREME COURT REPORTS 475
Rs. 500 on 12-9-1951, and we do. not find any ground
for differing from it.
Then, there is the payment of Rs. 500 made to the
North Arcot District Congress Committee on
23-9-1951. The contention of Mr. Chatterjee with ref
.crence to this payment is that unlike the payment
dated 12-9-1951, this was not spent for purposes of
dection but was donation made to the Committee out
of µi-iilanthropic motives. It has been frequently
pointed out that while it is meritorious to make a
<lonation for charitable purposes, if that is made at
the time or on the eve of an election, it is open to the
charge that its real object was to induce the electors
to vote in favour of the particular candidate,, and
that it should therefore be treated as election expense.
In The Wigan Case(1), Bowen, J. observed :
" ...... I wish to answer the suggestion that this
was merely charity. Charity at election times ought
to be kept by politicians in the background ...... In
truth, I think, it will generally be found that the feel
ing which distributes relief to the poor at election
time, though those who are the distributors may not
be aware of it, is really not charity, but party feeling
following in the steps of charity, wearing the dress of
charity, and mimicking her gait".
In The Kingston Case(2), Ridley, J. said:
"Now assume for the moment that a man forms
a design, which at the time is in prospect, for that is
the point; yet if circumstances alter, and an election
becomes imminent, he will go on with that design at
his risk".
ft would again be a question of fact whether the
payment of Rs. 500 by the appellant on 23-9-1951 was
a pure act of charity or was expense incurred for
election purposes. It was admitted by the Secretary
of the North Arcot District Congress Committee that
it was usual for the Tamil Nad Congress Committee
to consult the local Committee in the matter of adop
tion of candidates, and that at the time the payment
\_'\'as made, it was known that the appellant had ap
plied to be adopted by the Congress. Exhibit A(7)
(') 4 0.'M & H. I. (1) 6 O'M. & H. 374.
1955
S. Khader Sheriff
v.
Munnuswami
GOUflder and other
V enkatarama
i{yyar J.
1955
S. Khader Sheriff
v.
MunnuJwami
Gowukr and oJh~rs
Vtnkatarama
A~J!Yar ].
476 SUPREME COURT REPORTS fl955}
which 1s a statement of receipts and payments of the
North Arcot District Congress Committee for the
period 24-9-1951 to 24-5-1952 shows that the Com
mittee started with an opening balance of Rs. 7-12-2,
and that various amounts were collected including
the sum of Rs. 500 paid by the appellant and utilised
for election expenses. The Tribunal held on a con
sideration of these facts that the payment in question
could not be regarded as innocent, and "not motivated
by the desire to obtain the recommendations of the
North Arcot District Congress Committee for candi
dature of the first respondent". No ground has bcCll
shown for differing from this conclusion.
It was finally contended for the appellant that the
two payments dated 12-9-1951 and 23-9-1951 could
not be said to be expenses incurred on account of the
conduct and management of an election, and reliance
was placed on the decision in The Kennington Case('),
where it was held that payments made for the run
ning of a newspaper started for supporting a candidate
were not expenses incurred in · the conduct and
management of an election. The facts of the present
case have no resemblance to those found in that case,
and the · following comment on that decision in Par
ker's Election Agent and Returning Officer, Fifth
Edition, page 241 is instructive:
"But this decision could not be safely followed
except where the facts are precisely similar".
On the findings recorded above, the expenses in
curred by the appellant come to Rs. 8,06.3, and the
corrupt practice specified in section 123(7) has been
committed. The election was therefore rightly set
aside under section 100(2) (b) of Act No. XLIII of
1951.
(2) It is next contended for the appellant that the
Tribunal was in error in recording as part of the order
a finding that by reason of the contravention of sec
tion 123(7), the appellant had become subject to the
disqualification specified in section 140, without giv
ing notice to him as required by the proviso to section
(') 4 0' M. & H. 93.
I
I
I
I
2S.C.R. SUPREME COURT RE.l'ORTS 477
91. The question whether a party to an election pet~
tion is entitled to a notice under the proviso in respect
of the very charges w!Hch were the subject-matter of
enquiry in the petition itself, has been considered by
this Court in Civil Appeal No. 21 of 1955, and it has
been held therein that if the party had opportunity
given to him in the hearing of the petition to meet the
very charge in respect of which a finding is to be re
-corded under section 99( 1) (a), then he is not entitled
to a further notice in respect of the same matter,
under the proviso. In the present case, the finding
under section 99(1)(a) relates to the very payments
which were the subject-matter of enquiry in the elec
tion petition, and therefore no notice was required to
be given to the appellant under the pro·1iso. This
objection also fails, and the appeal must accordingly
be dismissed.
The respondent has stated through his counsel Shri
Naunit Lal that he does not propose to contest the
appeal. There will accordingly be no order as to
costs.
Appeal dismissed.
CHATTANATHA KARAYALAR
"· RAMACf{A.NDRA IYER AND ANOTHER.
{V1v1AN BnsE, VENKATARAMA AYYAR and B. P. SINHA JJ.]
Election Dispute-Returned candidate alleged to be disqualified
for being chosen as a member-Hindu fathe1· entering into Government
contt·act, if does so en behalf of the undivided family-Presumption
ef Hindu Law-Finding of benami, if liable to be intei'fered with in
Special appeal-Representation of the People Act (XL!Il of 1951),
SS. 7(d), 9(2}.
There is no presumption in Hindu Law that a business stand
ing in the name of a member of the Hindu joint family is joint
family business, even when that member is the manager or the father.
There is this difference between the position of the father start
ing new business and a mere manager doing so that while the
debts r.ontracted by the father in such business are binding on the
sons on the theory of a son's pious obligation to pay his father's
debt, those contracted by the latter are not binding on the other
1955
S. Khat/er S/tn'il
v. ,
.\funnruwami
Gounder and others
V enkatarama
AY,var J.
1955
S1ptemb11 19