Shriram Hari Tambey v. Diwakar Ramchandra Kharabe — 1974 DIGILAW 89 (BOM)

JUDGMENT:- 1-22. (After discussing the evidence, his Lordship proceeded) These positions having been ascertained, then comes the question as to the award of damages, which in principle is in the nature of restitution to those who depended on the deceased, and, secondly, for the loss of the life of the deceased itself. It is not punitive in any manner and the Court is called upon to balance every interest as much as possible and to arrive at a reasonable sum which will meet not only the expectation of life but commensurate the demands of those who expect to depend on such life. 23. As far as the present appeal is concerned there are two divergent approaches canvassed before me. On behalf of the appellant-plaintiff who is the head of the family who was expecting Sulabha to grow up and help in the waning years of the father, it is said there is a good case made out for granting damages both under Section 1-A as well under Section 2 of the Fatal Accidents Act and that Rs. 10,000/- is the minimum measure put by the father on the loss of this brilliant life. 24. On the other hand, the respondents submit that life and the facts of life are to be kept in view while determining the question of damages. It was for the plaintiff to establish as to what would have been the probable life's span and what would have been the probable earnings of the deceased. The evidence, the learned counsel submits, is absolutely wanting and mere guess-work cannot be the substitute for the proof that is required in these matters. At any rate, it is submitted that this being an appeal against the quantum of damages, the figures arrived at by the trial Judge should be treated as standard and there is no case for its enhancement. Certain decisions were cited at the Bar on behalf of both sides and they will be noticed in the later part of this judgment. 25. Suffice it to say, therefore, the approach of both the parties is diametrically opposite. In fact at one stage it was canvassed by the respondents that the trial Judge's judgment is not based on any evidence and is purely a guess-work which is not in accordance with law. 26. 25. Suffice it to say, therefore, the approach of both the parties is diametrically opposite. In fact at one stage it was canvassed by the respondents that the trial Judge's judgment is not based on any evidence and is purely a guess-work which is not in accordance with law. 26. Now in the matters of damages of such kind, there cannot be any hard and fast rule nor the estimates given by the witnesses can conclude with accuracy the damages and its award. It appears to be well intended in the provisions of the Act itself to leave the matter to be worked out upon the facts and circumstances of each case and there is no rule of rigidity indicated. As I said earlier, it is for the Court to balance all the circumstances and to work out the sum which will answer a sort of restitution for the loss of life because of an accident caused by negligence. Under Section 1-A of the Fatal Accidents Act, it is provided by the legislature advisedly that the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively. Thus the matter rests in the discretion of the Court to be worked out by balancing out of all interest and further taking an overall view of the whole matter. But the principle underlying Section 1-A is the loss resultant because of the death to the parties claiming the damages. Section 2 is more or less a proviso, though independently enacted, to Section 1-A. By the first part of Section 2 only one action or one suit is contemplated and by the second part it is made clear that in such action or suit the executor, the administrator or the representative of the deceased could insert a claim for and recovery of any pecuniary loss to the estate of the deceased. The distinction between the two sections is obviously clear. Section 1-A speaks of loss resulting from such death to the parties claiming in such a suit while Section 2 speaks of pecuniary loss to the estate of the deceased. 27. The distinction between the two sections is obviously clear. Section 1-A speaks of loss resulting from such death to the parties claiming in such a suit while Section 2 speaks of pecuniary loss to the estate of the deceased. 27. The nature of these provisions have been the subject-matter of consideration by the Supreme Court in Gobald Motor Service Ltd. v. Veluswami, ( AIR 1962 SC 1 ) as well in C. K. Subraminia Iyer v. T. Kunhi Kuttan Nair, ( AIR 1970 SC 376 : 1970 ACJ 110). The distinction between these types of losses has been clearly brought out in the former case by referring to the judgment of Lahore High Court in Secretary of State v. Gokal Chand, (ILR 6 Lah 451 : (AIR 1925 Lah 636) and quoting the observations from the judgment of Sir Shadi Lal, Chief Justice (as he then was) by the Supreme Court with approval. The learned Chief Justice had observed : "The law contemplates two sorts of damages; the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate." In Gobald Motor Service Ltd.'s case the Supreme Court further observed with reference to Sections 1 and 2 of the Act as follows :- "The law on this branch of the subject may be briefly stated thus : The rights of action under Sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa." It is to be observed that in the case before the Supreme Court in Gobald Motor Service Ltd.'s case, a sum of Rs. 25,200/-was given as the damages under Section 1 being the reasonable provision which the deceased would have made if alive, while a sum of Rupees 5,000/- was awarded for the loss to the estate representing the damages for the mental agony, suffering and loss of expectation of life. All that was taken to be covered by the provisions of Section 2 of the Act. Therefore, it appears that the words of Section 2 which permit recovery of any pecuniary loss to the estate of the deceased occasioned by the wrongful act, has been understood to include the damages of the kind which were upheld in Gobald Motor Service Ltd.'s case, the same being for the mental agony, suffering and loss of expectation of life to the deceased. The said case and the principles thereunder were further applied in the latter case mentioned supra (C. K. Subramania Iyer's case). There a boy of about 8 years was killed in a motor accident. After noting the passage of law in England and difficulties in assessment of damages, the Court observed: "The mode of assessment of damage is not free from doubt. It is beset with certain difficulties. It depends on many imponderables. The English Courts have formulated certain basis for calculating damages under Lord Campbell's Acts. The rules ascertained by the English Courts are set out in Winfield on Torts 7th Edn. at pp. 135 and 136 as follows : The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. at pp. 135 and 136 as follows : The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a number of years' purchase. That sum, however, has to be taxed down by having regard to the uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.' The number of years' purchase is left fluid, from twelve to fifteen has been quite a common multiple in the case of a healthy man, and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man. These principles are however, only appropriate where the deceased was the breadwinner of the family. Obviously they cannot be applied, for example, where the claim is in respect of a mere expectation of the pecuniary benefit from the deceased or where the deceased's contribution to the family was in kind and not in cash. In truth, each case must depend upon its own facts. In Dolbey v. Godwin, 1955-1 WLR 553 at p. 1103(?), the plaintiff was the widowed mother of the deceased, an unmarried man 29 years of age, and he had contributed substantially to her upkeep. The Court of appeal held that it would be wrong to assess the damages on the same basis as if the plaintiff were the widow of the deceased, principally on the ground that it was likely that he would have married in due course and that then his contributions to his mother would have been reduced." From this paragraph which appears to have been approved as a mode of calculation of damages, it appears that it is permissible first to take into account the earning capacity of the deceased, taking into account the regularity of his employment and taking the reasonable personal expenditure of his, to work out a balance and by taking a number of years' purchase make out a figure in lump sum. All this is said with a qualification that everything must depend on its own facts. Referring to another English decision in Nance v. British Columbia Electric Rly. Co. Ltd., (1951 AC 601) the Supreme Court referred to another modality of arriving at damages by observing :- "(1) First estimate what was the deceased man's expectation of life if he had not been killed when he was and (2) what sums during those years, he would have probably applied to the support of the dependent." Referring to Gobald Motor Services Ltd.'s case (supra), the Supreme Court observed :- ".........The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained.........." The law was summarised as follows by stating :- "Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority............." On the facts of that case, the Supreme Court further observed that the deceased child was only 8 years old and the father was a substantial person being in a prosperous business, that the father needed no assistance from his son and it was not likely that the son would have been of any financial assistance to the parents till the age of twenty. There was no evidence to indicate what was the age of the parents, there was no material to indicate as to how old the parents of the deceased at the time of the death were nor there was any evidence about the state of health. In those circumstances, the appeal to increase the damage which were quantified by the High Court under Section 1-A at Rs. 5,000/- and under Section 2 at Rupees 1,000/-, was negatived. 28. These two cases thus lay down the guiding principles in this regard. Firstly, the parents are entitled to recover the cash value of the services of the deceased minor. Secondly, they are further entitled to have compensation for the loss of pecuniary benefits that can reasonably be expected after the child might have attained the majority. 29. I have already indicated in the present case that there is evidence coming from Shriram who was aged about 54 years that within a period of three years he would be out of service. There was firm evidence that Sulabha was about 12 years of age and was expected to help the family. In fact she was helping like any other member her mother in her works in the family. I have also referred to various ages of the other members of the family and the reasonable expectation in the matters of education of the said family. Sulabha was in 5th standard at the age of ten and she would have been Matriculate by the age of sixteen and Graduated herself by the age of twenty if everything had been all right. Sulabha was in 5th standard at the age of ten and she would have been Matriculate by the age of sixteen and Graduated herself by the age of twenty if everything had been all right. There is evidence to show that at the age of twentythree one of her sisters was taking M. A. education. Putting the reasonable expectation Sulabha would have had the same sort of career of being the Graduate at the age of twenty. Her mother was of 48 years age and father 54 years. After graduation, it is possible to conceive that Sulabha would have been of an obvious pecuniary help to the family and all that was a loss to this family which was immediately in need of the support and services for the father, as he stated, was going to retire within a period of three years. It is however, conceivable that there being other earning members like sons and daughters, Sulabha might not have been the only source for the purpose of dependence by the father and mother, but that is all a matter of guess in this regard. 30. Thus taking the life period of Sulabha as it is, by 1969 she would have been an earning member if graduated. These are the facts which are logically inferable as emanating from the evidence of Shriram. As is often said there is no possible accuracy available in this regard and everything must be conceived subject to possibilities of its version. 31. Therefore, the standard applied and upheld by the Supreme Court in maintaining Rs. 6,000/- upon the death of 8 years' boy, where there was no evidence about the need of the help of such a boy to the family, can also furnish a relevant clue while considering the present case. 32. I may briefly consider the other cases which have been brought to my notice to arrive at some such figures, though every case has to be considered on its own merits and facts. 33. In the case reported in Concord of India Insurance Co. Ltd. v. L. J. Machado, 1966 ACJ 321 : (AIR 1966 Mys 346) the Mysore High Court was considering a case of the loss of a boy of eight years and awarded his father and mother Rs. 5,000/-as loss of expectation of life and Rs. 1,000/-as compensation for pain and agony caused to the claimants themselves. Ltd. v. L. J. Machado, 1966 ACJ 321 : (AIR 1966 Mys 346) the Mysore High Court was considering a case of the loss of a boy of eight years and awarded his father and mother Rs. 5,000/-as loss of expectation of life and Rs. 1,000/-as compensation for pain and agony caused to the claimants themselves. The facts taken into account were that the boy was a sufficiently bright one and was enjoying good health. His father was earning Rs. 3/- to Rs. 4/- per day and his mother Rs. 34/- per month. There were three members in the family. Applying the test of normal expectation, it was assumed that the educational career of the deceased would have been satisfactorily terminated and after that he would have been able to acquire sufficient earning power. Relying on the decision and considerations available in Krishna Gounder v. Narsingam Pillai, ( AIR 1962 Mad 309 ), where the death of 7 years' old child was considered, the Court found that these facts indicate that the victim would have easily earned Rs. 50/- to Rs. 60/- per month, and had he been appointed to Class IV post or clerical post, that earning would have gone to Rs. 100/- per month. After considering the English Cases on the point, the Court found that the award in that sum was a proper assessment as the circumstances of the life of the deceased were calculated to lead on balance to a positive measure of happiness of which he has been deprived. Therefore, under Section 1-A the Court was pleased to grant Rs. 1,000/- while under the latter Rs. 5,000/-. 34. In Shiv Prasad Gupta v. S. M. Sabirzaidi, 1967 ACJ 321 : ( AIR 1968 All 186 ) the Allahabad High Court was concerned with the death of a eighteen-year old young man. There the Court found that the average Indian span of life should be put at 70 years and taking that the deceased would have started earning at the age of 25, made an award in the sum of Rs. 12,000/-, calculating the pecuniary assistance from the deceased to the family of Rs. 100/- per month for a period of 12 years. 12,000/-, calculating the pecuniary assistance from the deceased to the family of Rs. 100/- per month for a period of 12 years. The Court took into account the circumstances of the family, the position which the deceased occupied in his family, the mental and physical equipment of the deceased, his age, also the age of the plaintiff and the standard of living of the particular family. There the plaintiff was 52 years of age and the deceased of 18 years. The earning age was treated to start with 25 and ending with 60 years and taking the mean, the sum of Rs. 12,000/- was calculated. 35. In Perumal v. State of Madras, (1971 ACJ 144 (Mad)) again, the Madras High Court was considering the death of a child of 8 years, and the claimants were the parents. While considering the principles of assessment, the Court took into account the change of attitude of the courts in England itself because of the depreciation of the value of the money and increased the damages from Rs. 3,000/- to Rs. 5,000/-. While fixing the damages it was observed that neither wealth nor the status of the child should be regarded as relevant in fixing the quantum. The English case : Benham v. Gamling, (1941 AC 157) was concerned with the death of a child of 2½ years. The Court applying the principles followed by the English Courts after that decision was minded to raise the amount of compensation. The High Court of Delhi considered in the earlier case W. S. Bhansingh and Sons v. Om Prakash Kaith, ( 1971 ACJ 324 (Delhi)) a case of a child of five years killed in an accident and upheld an award in the sum of Rs. 6,000/-. The Court observed that the potential earning capacity of the deceased, the normal expectation of his life, the status of the family of the deceased and the estimate of the financial assistance which the petitioners expected from the deceased if he had lived, his normal age, were all the relevant considerations. 36. In P. S. Kothandani v. V. N. S. Pothi Naikar, (1971 ACJ 456 (Mad)), the Madras High Court again granted Rs. 5,000/-for the death of a girl of the age of eight years. She was from a very ordinary family. It was a family of having daughters only and the victim girl was second. 36. In P. S. Kothandani v. V. N. S. Pothi Naikar, (1971 ACJ 456 (Mad)), the Madras High Court again granted Rs. 5,000/-for the death of a girl of the age of eight years. She was from a very ordinary family. It was a family of having daughters only and the victim girl was second. The evidence was that she was active and intelligent. On those facts the award of Rs. 5,000/- was held to be reasonable. In Hirji Virji Transport v. Basiram Bibi, ( 1971 ACJ 458 (Guj)), the Gujarat High Court considering the case of a deceased at the age of 45 having earning capacity of Rs. 4,500/- per annum and awarded Rs. 45,975/-. There the Court found even at the age of 45, he being an active person the maximum purchases year should be fixed at 15. Thus for the purpose of computing the compensation the reasonable earning age was put at 60. The Court further clarified that under the Act the loss to the dependants is synonymous to the loss of maintenance to the dependants, while the loss to the estate is the loss of savings that the deceased could have made during his life and the damages for mental agony, suffering and loss of expectation of life and all include in the second head, i. e. in Section 2 of the Act. The method that found favour with the Gujarat High Court appears to be to determine the basic annual dependency of the family and then to multiply it by years' purchase factor ranging between 12 to 15. 37. There is yet another decision of the Delhi High Court in 1970 ACJ 110 : ( AIR 1970 SC 376 ) where that Court granted Rs. 5,000/- under Section 1-A and Rs. 1,000/-under Section 2 of the Act as compensation upon the death of a son aged about 8 years. 38. 37. There is yet another decision of the Delhi High Court in 1970 ACJ 110 : ( AIR 1970 SC 376 ) where that Court granted Rs. 5,000/- under Section 1-A and Rs. 1,000/-under Section 2 of the Act as compensation upon the death of a son aged about 8 years. 38. As far as this Court is concerned, a Division Bench of this Court in Abdulkadar Ebrahim v. Kashinath Moreshwar Chandani, 1968 ACJ 78 : ( AIR 1968 Bom 267 ) was considering a case of loss due to death of a wife to her husband at the age of 60 and one of the tests laid down was that loss under the head of loss of expectation of life should be assessed by applying an objective test of whether the deceased would have led a predominantly happy life and in doing so all relevant circumstances such as the social position of the deceased should be taken into consideration. There also the Court observed that the present value of the rupee is also a valid consideration while assessing the damages. In Abdul Mahomed v. Petter Leo D'Mello, 66 Bom LR 551 : ( AIR 1965 Bom 21 ) a boy of six was done to death. The total amount of compensation was Rs. 6,000/-which was affirmed by this Court. On account of loss of expectation of life, a sum of Rs. 5,000/- was treated to be reasonable and the Court observed that the evidence of the father of the boy shows that the circumstances of the family and the standard of life were reasonably good, the parents took interest in their life and the child had a fair chance of having a happy life. 39. All these cases, in India indicate certain basic principles to be followed in assessing the damages under both Section 1-A as well as Section 2, of the Act. The capitalised value of the reasonable services rendered to the dependants can thus be given under Section 1-A, while the award can be made for the loss of fairly happy and healthy life under Section 2 of the Act. The cases range as I have noted above between the age group of 5 to 8 and the assessment of damages under both counts has been Rupees 5,000/- to Rs. 6,000/-. The cases range as I have noted above between the age group of 5 to 8 and the assessment of damages under both counts has been Rupees 5,000/- to Rs. 6,000/-. More or less the conditions in a given family of the child has been taken note of. The case of this Court referred to above, i. e. Abdul Mahomed's case ( AIR 1965 Bom 21 ) dealt with a child of six years and awarded Rs. 1,000/- for the loss of service and Rs. 5,000/- for the loss of expectation of life. From this, judicial approach to the death of a child below the age of ten in this country upon proof of normal family conditions is to assess damages within the range of Rs. 5,000/- to Rs. 6,000/- during the period till about 1970. That is how reasonable desideratum or quantum itself is furnished and once basic facts are established, that would constitute fair quantification. Every case may have however its own facts either requiring increase or decrease in this ratio. 40. Coming to the present matter, the learned Judge has not made any such effort to find out what should be the reasonable assessment of damages awardable to the plaintiff. The method does not disclose any foundation. It does not take into account the say of the plaintiff about the circumstances in which deceased Sulabha was placed and the possible indications how she might have grown and become an earning member. The approach clearly suffers from the charge of pure guess work. 41. It has to be remembered that under the scheme of the Fatal Accidents Act the life that is lost has to be treated as "an economic unit." That subserves the needs of those who depend reasonably on such life and further it has the potentiality of happiness and as well to earn an estate by reasonable means of livelihood to itself. Therefore, at the outset the attempt should be to find out the basic circumstances in which the life lost was set and by taking in the reasonable measure to arrive at a possible expectation in the matters of succour or help which might have occurred to those who claim and further the matters of savings which may have been gained by enjoying the life-span with its possible utility. On and off it has been said that the test is to offset together all "the imponderables", but that is no reason why full probable and possible pecuniary circumstances and factors out of a given case cannot be constructed to find the restitutive measure in favour of a suitor. 42. Looking to the present case, it does appear that the family expects the children to learn and earn. The evidence of Shriram is clear in this matter. As I have said earlier therefore it can be easily expected that Sulabha would have embarked upon a career of economic utility both for her benefit as well as for the benefit of her family. Starting with the age of 20, even till the age of 25, and leaving all other possible period of her life expecting that she would have married by that time, she can be expected to be a source of earning at least for five years. I am making all allowances for vicissitudes both till the age of 20 and beyond 25 though it is clear that parents are entitled to claim even for services to family. The learned trial Judge has put her earnings at Rs. 150/- per month on an ad hoc basis. That is obviously a very low estimate in the year 1969. I am inclined therefore to fix the value of the remunerations of a graduate in the year 1969 at Rs. 300/- per month. Taking that figure, the family could have expected from that amount for both the retired father and the aged mother at least one-third, i. e. Rs. 100/-per month. If even on the reasonable basis only of five years that is the benefit to which these aged parents have been deprived, they would be entitled to be compensated to that extent. Thus on the count of loss suffered by dependents, the measure would work to Rs. 1200/- per year and for five years it would be Rs. 6,000/-. The claim of the plaintiff had been Rs. 5,000/-. Thus taking all the factors into account, I do not think that the claim made by the plaintiff in the sum of Rs. 5,000/- on that account is in any manner excessive or unreasonable. In fact that takes in the entire period of life and including services expected of the parted soul and as calculated above the sum claimed is entirely fair and equitable. 5,000/- on that account is in any manner excessive or unreasonable. In fact that takes in the entire period of life and including services expected of the parted soul and as calculated above the sum claimed is entirely fair and equitable. 43. That leaves the question of award on account of loss of life to itself. It is eminently clear that Sulabha was having good health and there was reasonable expectation of good happy, healthy life. She was deprived of all that happiness and enjoyment and in awarding damages on that count, applying the tests of Section 2, it appears on a reasonable view that she could have saved for herself at least Rs. 50/- per month, spending Rs. 150/- for her own self-maintenance; even during the period of five years if that can be treated to be the active period of service. If that is so, she would be saving about Rupees 600/- per year and that would mean within a period of five years a sum of Rs. 3,000/-would have been earned and saved by an active healthy economic employee. I find that on these counts the plaintiffs are claiming two items - one in the sum of Rs. 2,500/-and again in the sum of Rs. 2,500/- though they have differently described the same said items, but the total claim is to the tune of Rs. 5,000/-. On a fair calculation of the active earning life which is the minimum that can be granted to a Graduate in this country I am inclined to grant Rs. 2,500/- on account of loss of life of Sulabha and thus loss of estate that could have been earned by reasonable expectations, had Sulabha been available as an earning unit. 44. Now this working, no doubt, involves little but building up the premises on the matters available on record. That is, however, a permissible mode. The total thus works out to Rs. 7,500/- Even the ratio of the reasonable grant indicated by the various precedents mentioned by me above in the past five years indicate that the Courts have assessed the value on child-death between Rs. 5,000/- to Rs. 6,000/- where the loss was at ages 6 to 8. The economic conditions prevailing which is also a relevant factor including the value of rupee would have the upset increase in this assessment. 5,000/- to Rs. 6,000/- where the loss was at ages 6 to 8. The economic conditions prevailing which is also a relevant factor including the value of rupee would have the upset increase in this assessment. Thus taking the life of Sulabha as it is and it emerges from the evidence and even assessing five years as the best earning years of her life. I am inclined to hold that both under Section 1-A and under Section 2 of the Act, an award of Rs. 7,5000/- would meet the ends of justice. 45. In the result, the decree of the learned Judge in the sum of Rs. 3150/- will be modified and substituted by the figure of Rs. 7,500/- and decree in this term shall be made. Appellant to get proportionate costs throughout. As the result of the above findings the cross-objection filed would stand dismissed with costs. Appeal allowed and cross-objection dismissed. ORDER:- This Special Civil Application filed by the petitioner who is the landlord, under Article 227 of the Constitution of India raises a question of law as to whether the order of the Agricultural Lands Tribunal dropping the proceedings under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act) on the ground that the tenant was a widow on the tiller's day and her right to purchase the land was postponed under Section 32-F (1) (b) of the Act, which order was confirmed by the Revenue Tribunal, operates as res judicata, and, therefore, fresh proceedings under Section 32-G of the Act at the instance of the widow were not maintainable. 2he facts of the case are few and are no longer in dispute. The lands bearing Survey Nos. 340-2B, 341-1A, 341-2, 340-2C and 341-1B of village Soni in Miraj Taluka belong to the petitioner. The respondent is a widow since before April 1, 1957, the tiller's day. She is in possession of the said lands as a tenant since before the tiller's day. The lands bearing Survey Nos. 340-2B, 341-1A, 341-2, 340-2C and 341-1B of village Soni in Miraj Taluka belong to the petitioner. The respondent is a widow since before April 1, 1957, the tiller's day. She is in possession of the said lands as a tenant since before the tiller's day. The Agricultural Land's Tribunal Suo motu commenced proceedings under Section 32-G of the Act in respect of the said lands and by its order dated November 16, 1960, held that the respondent No. 1 being a widow on the tiller's day, her right to purchase the lands was postponed under Section 32-F (1) (b) of the Act and in this view of the matter dropped the proceedings. This order of the Agricultural Lands Tribunal was challenged in appeal by the respondent No. 1. The Special Deputy Collector who heard the appeal disagreed with the view of the Agricultural Lands Tribunal and took the view that the widow-tenant is entitled to exercise her right to purchase the land during her lifetime. He, therefore, allowed her appeal and remanded the case for fresh inquiry to the Agricultural Land's Tribunal. In a revisional application filed by the petitioner, the Revenue Tribunal set aside the order passed in appeal and restored that of the Agricultural Lands Tribunal. The Revenue Tribunal followed the view taken by the Bench of the Maharashtra Revenue Tribunal and restored the order passed by the Agricultural Lands Tribunal. This order was passed by the Revenue Tribunal on August 12, 1964. It appears that after this decision of the Revenue Tribunal, a view was taken by the Revenue Tribunal that the provisions of Section 32-F (1) (b) were optional and the rights conferred on the widow or a minor by the said provision were independent of and in addition to their right under Section 32 of the Act. The respondent No. 1, therefore, filed another application to the Agricultural Lands Tribunal to start proceedings under Section 32-G for determining the price of the said lands. The Agricultural Lands Tribunal, however, was of the view that the final order was passed by the Revenue Tribunal and the remedy of respondent No. 1 was to approach the Revenue Tribunal, for review of the order passed by it. The Agricultural Lands Tribunal, therefore, directed respondent No. 1 to approach the Revenue Tribunal for review of its order. The Agricultural Lands Tribunal, however, was of the view that the final order was passed by the Revenue Tribunal and the remedy of respondent No. 1 was to approach the Revenue Tribunal, for review of the order passed by it. The Agricultural Lands Tribunal, therefore, directed respondent No. 1 to approach the Revenue Tribunal for review of its order. This order of the Agricultural Lands Tribunal was confirmed in appeal by the Collector. In a revision filed by the respondent No. 1 challenging the order of the Collector, the Revenue Tribunal held that in the circumstances of the case, the previous order did not stand in the way of the petitioner for starting fresh proceedings under Section 32-G. The Revenue Tribunal, therefore, set aside the orders passed by the two authorities below and the case was remanded back to the Agricultural Lands Tribunal for taking proceedings under Section 32-G of the Act. 3. The short question for consideration that arises in this petition, therefore, is whether the order passed by the Agricultural Lands Tribunal dropping the proceedings which was confirmed by the Revenue Tribunal by its order dated August 12, 1964, bars initiation of fresh proceedings for determination of price of the land at the instance of the widow-tenant. 4. Mr. Paranjpe, the learned Counsel appearing for the petitioner contends that the previous order dropping the proceedings under Section 32-G would operate as res judicata, and, therefore, proceedings on the application of the respondent No. 1 could not be entertained. He submits that in effect, the Revenue Tribunal has reviewed its own previous order on the ground that the earlier view which disentitled the widow-tenant to purchase the land under Section 32 was later on not accepted, and a view was taken that it was optional to the widow-tenant to exercise her right under Section 32 to purchase the land. According to him, a review on such a ground is incompetent. 5. In order to appreciate the contention raised by Mr. Paranjpe, it would be necessary to consider the scheme of Sections 32 and 32-G of the Act. According to him, a review on such a ground is incompetent. 5. In order to appreciate the contention raised by Mr. Paranjpe, it would be necessary to consider the scheme of Sections 32 and 32-G of the Act. It is not disputed before me that the correct position in law is that the provisions of Section 32-F (1) (b) of the Act were optional and the widow can, if she so chooses, claim to take advantage of Section 32-G and become a deemed purchaser under Section 32-G. It would be open to a widow not to claim the benefit conferred on the tenant under Section 32 of the Act and in that event, the right to purchase the land could be exercised by a successor-in-title within the prescribed time under Section 32-F (1) (b). It is, therefore, not disputed before me that the view taken by the Revenue Tribunal relying on its order dated August 12, 1964 was not in accordance with law. The question then arises is as to what is the effect of the previous orders passed by the Agricultural Lands Tribunal and the Revenue Tribunal dropping the proceedings under Section 32-G on the ground that the right of purchase is postoponed under Section 32-F (1) (b). Section 32 inter alia provides that on the 1st of April, 1957, which is called "the tillers' day", every tenant shall subject to the other provisions contained in the very section and the provisions of the next succeeding section be deemed to have purchased from his landlord, free of all encumbrances subsisting thereof on the said day, the land held by him as a tenant. It is unnecessary to refer to the other provisions as it is not disputed that a widow-tenant has a right to claim the benefit of Section 32 of the Act by becoming a deemed purchaser on April 1, 1957. In the case of a deemed purchaser, the Agricultural Lands Tribunal is enjoined to take proceedings under Sec. 32-G by following the procedure thereunder. In the case of a deemed purchaser, the Agricultural Lands Tribunal is enjoined to take proceedings under Sec. 32-G by following the procedure thereunder. Such proceedings have to be commenced by the Agricultural Lands Tribunal suo motu, and the landlord or the tenant need not make an application for taking proceedings under Section 32-G. It would, therefore, be necessary to consider the scheme of Section 32-G. Subsection (1) thereof inter alia provides for publication of a public notice calling on the persons interested in the land including the tenant who is deemed to have purchased the land and the landlord, to appear before it on the specified date. In addition, the Tribunal has to give a notice individually to each such tenant, landlord and also, as far as practicable other persons interested in the land to appear before it on the date specified in the public notice. The next step which is contained in sub-section (2) provides that the Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as the tenant. Under sub-section (3), where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective. There is also a proviso to subsection (3) which gives a further opportunity to the tenant who has failed to appear before the Tribunal on the due date to review the order passed by the Tribunal declaring that the tenant is not willing to purchase the land and that the purchase is ineffective. If the tenant has shown his willingness to purchase the land under sub-section (4), the Tribunal is required to determine the purchase price of the land. Section 32-H provides the manner in which the purchase price be determined by the Tribunal. Section 32-K provides the mode of payment of price payable by the tenant-purchasers as also the power of the Tribunal to recover the purchase price. On the deposit of the price fixed by the Tribunal, the Tribunal has to issue a certificate of purchase to the tenant-purchaser in respect of the land under sub-section (1) of S. 32-F. It also provides for the consequences of non-deposit of the purchase price, viz. On the deposit of the price fixed by the Tribunal, the Tribunal has to issue a certificate of purchase to the tenant-purchaser in respect of the land under sub-section (1) of S. 32-F. It also provides for the consequences of non-deposit of the purchase price, viz. that the purchase shall become ineffective and the land shall be at the disposal of the Tribunal under Section 32-P. It would thus appear from the scheme of the said relevant provisions that duty is cast on the Tribunal to act suo motu and take the necessary proceedings under Section 32-G and the other relevant provisions of the Act. 6. Now, let us see what is the effect of the earlier order passed by the Agricultural Lands Tribunal. On a perusal of the order, it is quite obvious that the Tribunal refused to exercise the powers conferred on it under Section 32-G on the assumption that the tenant being a widow, her right to purchase the land was postponed by virtue of the provisions of Section 32-F (1) (b). The order clearly shows that the Tribunal was of the view that it had no jurisdiction whatsoever to proceed under Section 32-G in view of the fact that the tenant was a widow on the tillers' day, and she had no powers to commence the proceedings contemplated by Section 32-G. The said view of the Agricultural Lands Tribunal was confirmed by the Revenue Tribunal as indicated above. In other words, what has been done in this case is to refuse to start proceedings under Section 32-G on the ground that the Agricultural Lands Tribunal would have no jurisdiction to do so. In the present case, there was no dispute over the fact that the tenant was a widow on April 1, 1957 and the primary question that was required to be decided by the Agricultural Lands Tribunal was whether in view of the provisions of the Act it had jurisdiction to initiate the proceedings under Section 32-G or not. This is exactly what is done by the Agricultural Lands Tribunal in this case. There is no proceeding under Section 32-G which has been actually held nor any final order has been passed as contemplated by Section 32-G. The order of the Agricultural Lands Tribunal does not show that the procedure regarding the publication of the public notice or giving individual notices as required by sub-sec. There is no proceeding under Section 32-G which has been actually held nor any final order has been passed as contemplated by Section 32-G. The order of the Agricultural Lands Tribunal does not show that the procedure regarding the publication of the public notice or giving individual notices as required by sub-sec. (1) of S. 32-G was taken by it. It is also quite clear that in the view taken by the Agricultural Lands Tribunal, no statement of the tenant as to whether she was or was not willing to purchase the land was recorded nor was any price of the land fixed. It would, therefore, be obvious that this is a case where the Agricultural Lands Tribunal dropped the proceedings on the basis that it had no jurisdiction to take such proceedings under Section 32-G. The decision of the Agricultural Lands Tribunal or the Revenue Tribunal was based on an erroneous interpretation of the provisions of the Act that the tenant who is a widow is not entitled to purchase the land and her right to purchase the land is postponed in accordance with provisions of Section 32-F (1) (b) and the right of purchase could only be exercised by the successor-in-title of the widow. After the said decision, the view has been changed and it has been held that the provisions of Section 32-F (1) (b) are optional and those provisions do not prevent the tenant who is a widow to purchase the land under S. 32-G, and that the right conferred under S. 32-F (1) (b) is in addition to the right of the widow-tenant to purchase the land herself. 7. It is urged by Mr. Paranjpe that merely because the judgment is based on an erroneous interpretation of the provisions of law, it cannot be said that the principles of res judicata are not applicable. He submits that a wrong decision even on a point of law would operate as res judicata between the parties. In support of his contention, he has cited several decisions of various High Courts, and in particular, reliance has been placed on a decision of this court in Rajaram Tukaram v. The Central Bank of India, Ltd., 28 Bom LR 879 : (AIR 1926 Bom 481). I shall have an occasion to refer to this decision later. In support of his contention, he has cited several decisions of various High Courts, and in particular, reliance has been placed on a decision of this court in Rajaram Tukaram v. The Central Bank of India, Ltd., 28 Bom LR 879 : (AIR 1926 Bom 481). I shall have an occasion to refer to this decision later. For the present, I may observe that the counsel is right when he says that a decision on an issue of law will operate as res judicata in a subsequent proceedings between the same parties if the cause of the subsequent proceedings is the same as in the previous proceedings. It will not, however, operate as res judicata when the cause of action is different nor when the law has since the earlier decision been altered by a competent authority. However, these broad principles relating to the application of the bar of res judicata even on a point of law cannot apply when the decision relates to the jurisdiction of the court to try earlier proceedings. If the Agricultural Lands Tribunal on an erroneous interpretation of law dropped the proceedings on the ground that it has no jurisdiction to hold an inquiry under Section 32-G, such a decision cannot operate as res judicata. Just as a decision given by a court which has no jurisdiction to try the suit is a nullity and will not operate as res judicata for a fresh suit, similarly, refusal to exercise jurisdiction on a wrong view of law would not, in my opinion, operate as res judicata in a subsequent proceedings. In this connection, I may refer to a decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613 : ( AIR 1971 SC 2355 ) where it is observed - ''The doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the inerpretation of enactment affecting the jurisdiction of a court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent court on a matter in issue may be res judicata in another proceeding between the same parties : the 'matter in issue' may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter on issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declared valid a transaction which is prohibited by law." It is further observed by the Supreme Court that the question, relating to the jurisdiction of the Court cannot be deemed to have been finally determined by an erroneous decision of the court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly, by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. The facts of the case before the Supreme Court were that the tenant made an application to the court of the Civil Judge for determination of standard rent under Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This application was dismissed on the ground that the Act did not apply to open land let for constructing buildings, and this order was affirmed in revision. However, in view of another decision of this court in Vinayak Gopal Limaye v. Laxman Kashinath Athavale, ILR (1956) Bom 827 : ( AIR 1957 Bom 94 ) the tenant filed a fresh petition in the court of Small Causes as the area was included within the limits of Greater Bombay. The trial Court rejected the application on the ground that the question whether the Act applied to the case was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceedings, for fixation of standard rent. The decision of the High Court was challenged in appeal before the Supreme Court. The Supreme Court took the view that the earlier decision did not operate as res judicata and a fresh application for fixation of standard rent was maintainable as the question relating to jurisdiction of the court cannot be deemed to have been finally determined by an erroneous decision of the court. 8. In the instant case also the Agricultural Lands Tribunal refuses to exercise jurisdiction and powers under Section 32-G on an erroneous interpretation of the provisions of the Act holding that it had no jurisdiction to take proceedings under Sec. 32-G as the respondent No. 1 was a widow on the tillers' day. 9. Reliance was placed by Mr. Paranjpe on a decision of this court in 28 Bom LR 879 : (AIR 1926 Bom 481). 9. Reliance was placed by Mr. Paranjpe on a decision of this court in 28 Bom LR 879 : (AIR 1926 Bom 481). This decision far from supporting the contention of the petitioner supports the view that on the question of jurisdiction there can be no res judicata. In this connection, it would be worthwhile to refer to the following observations of Fawcett, J. at p. 895 of Bom LR : (at p. 490 of AIR) of the report :- "Therefore, so far as any argument may be raised that in any case the judgment on a point of law cannot be res judicata. I hold that in a case like the present the principle of res judicata does apply, although there was an adjudication on a point of law. I fully realize the distinction between cases where an erroneous decision on a point of law may be one which does not affect the Court's jurisdiction and cases where the point of law is one. which does affect it, ..............." 10. The position in law on the point raised can be summed up thus. Where the Agricultural Lands Tribunal or any other authority empowered to deal with matters under the provisions of the statute passes an order refusing to act or exercise jurisdiction over the subject-matter on a misconception of the interpretation of the statutory provisions or otherwise, such an order passed by it refusing to exercise powers cannot operate as res judicata and fresh proceedings in respect of the same subject-matter is maintainable. There is no question of res judicata when the question of jurisdiction is involved, and the authority is competent to start fresh proceedings on the assumption that it had jurisdiction to proceed with the matter and pass the appropriate orders. 11. In view of the above discussion, it is not possible to accept the contention of Mr. Paranjpe and the orders passed by the Agricultural Lands Tribunal on November 16, 1960 and the Revenue Tribunal on August 12, 1964 refusing to take proceedings under Section 32-G in respect of the suit lands cannot operate as res judicata, and the fresh proceedings for fixation of the price under Section 32-G at the instance of respondent No. 1 would be maintainable in law. In the view of the matter I am taking, it is not necessary to consider the other contention raised by Mr. In the view of the matter I am taking, it is not necessary to consider the other contention raised by Mr. Paranjpe regarding the powers of review which can be exercised by the Revenue Tribunal or the Agricultural Lands Tribunal. 12. In the result, the Tribunal was right in quashing the orders passed by the two authorities below and remanding the matter to the Agricultural Lands Tribunal for taking proceedings under Section 32-G of the Act. 13. Rule discharged. In the circumstances of the case, there shall be no order as to costs. Rule discharged.